2. U.S.C. 441f. Contributions in name of another prohibited

Section 441f makes it unlawful for any person to make a contribution in the name of another person, or for any person to knowingly 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 person.

As noted earlier, criminal violations of the campaign financing provisions of the Federal Election Campaign Act requires proof of "willful" intent, i. e. conscious defiance of the law. See 2 U.S.C. §437g(d) and AFL-CIO v. FEC, 628 F.2d 97, 98, 101 (D.C. Cir. 1980). The presence of surreptitious execution of an underlying FECA financing offense through the use of conduits, in a manner that violates 2 U.S.C. 441f, is one of the principal ways to demonstrate that a defendant acted with the requisite criminal state of mind.

Violations of Section 441f can arise from a defendant giving funds to a straw, for the purpose of having the straw complete the contribution to a federal candidate. See e.g. United States v. Passodelis, 615 F.2d 975 (3d Cir. 1980); reh. denied, 622 F.2d 567. Violations may also occur where the defendant reimburses someone who has already given to a candidate, thus converting the original donor's contribution to his own. See e.g. United States v. Hankin, 607 F.2d 611 (3d Cir. 1980). Under such circumstances, the motive is usually preservation of anonymity, since the donation will be reported publicly as having been made by the straw rather than by the true source. The use of straws is also frequently a means by which a single donor may give more than the contribution limits specified in 2 U.S.C. 441a allow.

Although the donor and the straw are equally liable under Section 441f, the customary approach to this type of case is to treat the straws as witnesses against the person who supplied the funds. This approach is consistent with the principal functions of the FECA: to assure public disclosure of large compaign donations, and to prevent certain types of donations which the Congress has deemed potentially damaging to the public good. It also is in keeping wtih the fact that most 441f violations are merely means to other illegal ends.

As the Hankin and Passodelis cases reflect, prosecutions under this statute can present complex venue questions.

2. U.S.C. 441g. Limitation on contribution of currency

Under Section 441g it is unlawful for any person to make contributions of currency of the United States or of any foreign country to any candidate for federal office which exceed $100. The limitation is cumulative, and applies to the candidate's entire campaign for nomination and election.

The statute does not directly address receiving cash for political purposes. However, campaign agents who knowingly receive cash in violation of this section may be prosecuted as aiders and abetters under 18 U.S.C. 2.

This limitation on giving cash differs from the contribution limitations specified in Section 441a.

2 U.S.C. 441h. Fraudulent misrepresentation of campaign authority

Section 441h prohibits any federal candidate, or any agent of a federal candidate, from fraudulently misrepresenting himself as having authority to speak or act on behalf of any other candidate or political party. This section also makes it unlawful for anyone willfully and knowingly to participate in, or conspire to participate in, any plan to misrepresent someone as acting for another candidate or party.

This statute is directed at "dirty tricks” activities, such as the infiltration of an opponent's campaign organization for the purpose of damaging the opponent's campaign. Unlike most of the provisions of the FECA, Section 441h is not subject to any monetary threshold before criminal jurisdiction attaches. See discussion of "dirty tricks," supra at pages 27-29.

2 U.S.C. 441i. Acceptance of excessive honorariums

Section 441i imposes limitations on the amount of honoraria which may be accepted by elected or appointed officers and employees of the Federal Government. Such individuals may not accept honoraria which exceed $2,000 per appearance, speech, or article. The statute excludes from the limits amounts accepted for travel and subsistence expenses for the federal official and his or her spouse or an aide, as well as amounts paid for agent's fees or commissions. An additional limit which prohibited receipt of honoraria aggregating over $25,000 per year was recently eliminated from Section 441i.

Section 441i applies to all persons who are employed by the federal government, not just those employed by the legislative branch. It does not apply to candidates running for Congress until they are sworn in as Members. The subject of receipt of honoraria by incumbent Members of Congress is also regulated by House and Senate rules.

The FEC has defined "honorariums" to mean a payment of money or anything of value received by an officer or employee of the Federal Government, if it is accepted as consideration for an appearance, speech, or article. 11 C.F.R. 110.12(b).

Although the honorarium statute is part of the FECA, Congress has specifically exempted honoraria from the definition "contribution." Thus, an incumbent Congressman running for reelection may accept both a $2,000 "honorarium," and a $1,000 "contribution" from the same person without violating the contribution limits in Section 441a.

2 U.S.C. 439a. Use of surplus campaign funds

Section 439a establishes principles govering the permissible use of surplus campaign funds donated to federal candidates and the political committees supporting them.

As a general rule, such surplus funds may be used to defray the expenses of the candidate in connection with the discharge of his or her duties as an elected

public official; they may be contributed to charities entitled to tax exempt status under 26 U.S.C. 501(c); they may be transferred to political committees directly affiliated with the national, state or local apparatus of a political party; and they may be used for "any other lawful purposes." Transfers of surplus campaign funds to political committees affiliated with political parties are also exempted from the contribution limitation contained at 2 U.S.C. 441a, which would normally apply to transfers between political committees.

Over the years between 1974 (when this section first appeared in the FECA), and 1980 (when FECA was substantially revised), serious questions arose concerning whether the catchall exception allowing the use of surplus funds “for any lawful purpose" permitted candidates to convert them to their personal use. The 1979 FECA resolved this ambiguity by specifically providing that as a general rule the personal use of surplus funds is prohibited. However, an exception to this general prohibition exists with respect to personal conversions by those who were Members of the 96th Congress on January 8, 1980, when the 1979 FECA became law. The amended version of Section 439a allows such incumbents to use surplus funds for personal purposes.

2 U.S.C. 437g. Enforcement

A. CRIMINAL/CIVIL REMEDIES

Section 437g contains the machinery through which violations of the FECA are enforced. It applies to all violations of the Act, including both campaign financing offenses and reporting offenses.

Prior to the 1976 FECA, all violations of the Act were subject to prosecution under a strict liability misdemeanor penal provision, 2 U.S.C. 441. This criminal liability attached regardless of the degree of criminal intent present, regardless of motive with which the would-be defendant acted, and regardless of the quantitative size of the offense. Strict criminal liability such as this was not usually an effective response to conduct that generally involved unintentional infractions of a highly complex regulatory statute. Indeed, the D.C. Circuit held that presence of First Amendment overtones in nearly all FECA violations required at least a showing of "general intent," i.e. knowledge of operable facts, in order to support a criminal conviction for offenses of this kind. United States v. Finance Committee To Re-Elect the President, 501 F.2d 1194 (D.C. 1974). Accordingly, the Department adopted a policy in such matters which viewed criminal prosecution as appropriate only in response to campaign financing violations which were committed by defendants who had an active awareness that they were doing something wrong, and which entailed more than de minimus sums of money. The 1976 FECA provided a statutory answer to this enforcement problem. This legislation transferred all of the campaign financing statutes from the Criminal Code to the Federal Election Campaign Act. At the same time, an important statutory dichotomy was created between nonfeasant or quantitatively de minimus violations on the one hand, and violations committed with "knowing and willful" intent and involving relatively large sums of money on the other

hand. The former were expressly made subject to the exclusive jurisdiction of the Federal Election Commission, which was in turn empowered to respond to them through administrative conciliation and civil enforcement. The latter were made subject to a limited criminal misdemeanor provision enforced by the Justice Department. The civil enforcement provisions were codified at 2 U.S.C. 437g(a), while the criminal penalty was initially codified at 2 U.S.C. 441j. The 1979 FECA further refined the FEC's enforcement procedures, and moved the criminal enforcement provision to 2 U.S.C. 437g(d) without major substantive change.

Jurisdictional questions involving the interrelationship between the two types of remedies, and in particular whether a criminal prosecution could be initiated prior to or in the absence of an administrative referral from the Commission, were litigated in three cases: United States v. Jackson, 433 F.Supp. 239 (W.D. N.Y. 1977), aff'd, 586 F.2d 832 (1978); United States v. Tonry, 433 F.Supp. 620 (E.D. La. 1977); and United States v. International Union of Operating Engineers, 638 F.2d 1161 (9th Cir. 1979). All three cases held that criminal cases grounded on the FECA's penal section are ordinary federal crimes, and that they may be prosecuted without first having been processed by the Federal Election Commission.

Criminal violations of the FECA differ from noncriminal violations of it principally in the degree of criminal intent involved. For an FECA offense to rise to a level that is cognizable under 2 U.S.C. 437g(d), it must have been committed with "knowing and willful" intent. However, the substantive provisions of the Act are largely regulatory malum prohibitum prohibitions and duties. As such, the existence of a statutory specific intent element requires proof either that a would-be FECA defendant had an active awareness that he was violating the law when he committed the transgression in question, or that he was otherwise acting with "evil" motive or purpose. See e.g. AFL-CIO v. FEC, 628 F.2d 97 (D.C. Cir. 1980), and National Right to Work Committee v. FEC, 716 F.2d 1401 (D.C. Cir. 1983), holding that the statutory "knowing and willful" requirement in the FECA's penalty section requires proof of "knowing conscious and deliberate flaunting of the Act." As a practical matter, such cases are confined to two situations.

1. Those where surreptitious means (such as cash, conduits, or false documentation) are employed to conceal conduct that itself violates one or more of the FECA's substantive requirements. In such situations, proof exists that a defendant was actively aware he was violating one of the FECA's regulatory prohibitions or duties. An example of this first situation might be the use of conduits to conceal the fact that corporate funds were being infused into a political campaign in violation of both 2 U.S.C. 441b and 441f.

2. Those where a substantive FECA violation takes place as a means to a felonious end. An example of this second situation would be the use of corporate cash to pay a bribe, where the payment is made to a campaign committee in the form of a campaign contribution.

The monetary floor for a criminal violation of the FECA is presently set at $2,000. 2 U.S.C. 437g(d). There is no monetary floor for the imposition of noncriminal administrative penalties by the FEC pursuant to 2 U.S.C. 437g(a).

B. VENUE

The campaign financing statutes are, for the most part, couched in terms of "making" or "receiving" contributions and expenditures. Accordingly, venue is generally determined by where a prohibited transaction was either made or received. While this may present no problems where intradistrict or isolated transactions are concerned, a recent Third Circuit decision has read the concept of "making a contribution" so narrowly that serious difficulties may be encountered in establishing a centralized venue over multidistrict FECA violations.

In United States v. Passodelis, 615 F.2d 975 (3d Cir. 1980), reh denied en banc, 622 F.2d 567, a presidential campaign fundraiser had been indicted and convicted under present 2 U.S.C. 441a and 441f for contributing excessive sums of money through conduits located in four states. Venue was laid in the Middle District of Pennsylvania, where the political committee to which these donations were given had its offices and bank accounts. The Third Circuit held that prosecutions of donors under the FECA had to be brought in the District where they "made" the prohibited donations in question, and that this concept did not encompass the donee's receipt and acceptance of the corpus of the offending transaction. Just what constituted the "making of a contribution," and precisely when or where the transaction was concluded, was not fully explained by the Passodelis Court.

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 "donee" cases may be brought in the district where the donee converted them to his or her use.

C. STATUTE OF LIMITATIONS

The statute of limitations for prosecuting campaign financing violations such as those discussed in this section of the Manual is three years. 2 U.S.C. 455. There is, however, no statute of limitations for civil enforcement by the FEC. This represents one of the few special statutes of limitation in federal criminal law enforcement, and to our knowledge it is the only one which is shorter than the customary five years. This short limitations period presents substantial problems to law enforcement in this area. See United States v. Hankin, 607 F.2d 611 (3d Cir. 1980).

D. PREEMPTION OF STATE LAWS

2 U.S.C. 453 provides that the Federal Election Campaign Act controls and supersedes inconsistent state laws insofar as the subject of campaign financing matters with respect to federal campaigns is concerned. Many States have their own laws dealing with campaign financial transactions similar to those that are covered by the FECA. In some cases, these state codes are extensive, as for example is the case with Florida. Where such local or state laws exist, Section