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necessary. The same is true for attempts to subvert federal programs for political ends.

The prosecution of these offenses is the responsibility of the United States Attorneys. Investigative jurisdiction over them rests with the Federal Bureau of Investigation, and under certain circumstances with the Inspector General in the agency affected.

All indictments, informations or complaints filed under these statutory theories must be approved by the Public Integrity Section. As with election fraud matters, the purpose of this required preclearance is to assure nationwide uniformity in the enforcement of complicated laws and innovative prosecutive theories. All grand jury process directed exclusively at patronage offenses must likewise be approved by the Public Integrity Section. However, no preclearance is needed at the investigative stage of matters where non-election statutes (e.g. fraud, theft, extortion, etc.) may legitimately be involved in the same pattern of conduct with patronage matters.

C. CAMPAIGN FINANCING OFFENSES

Dual Enforcement Jurisdiction

Enforcement jurisdiction over provisions of the FECA that deal with the way campaign funds are raised and spent is split between the Department of Justice and the Federal Election Commission. The Commission has exclusive investigative and enforcement jurisdiction over noncriminal matters. 2 U.S.C. 437c(b), 437d(a)(b), and 437d(e). Criminal enforcement is the responsibility of the Justice Department, and prosecution for campaign finance crimes may be initiated without authorization or consultation with the FEC. United States v. International Union of Operating Engineers, 638 F.2d 1161 (9th Cir. 1979); United States v. Tonry, 433 F.Supp. 620 (D. La. 1977); United States v. Jackson, 433 F.Supp. 239 (W.D. N.Y. 1977), aff'd, 586 F.2d 832 (1978).

Difference Between Criminal and

Noncriminal Violations

The FECA specifies requirements concerning the financing of political campaigns. Violations of these provisions are subject to administrative conciliation, civil fines, and where necessary civil lawsuits. All of these enforcement activities are the exclusive statutory prerogative of the Federal Election Commission. 2 U.S.C. 437d(e), 437g(a).

Most of the FECA's campaign finance requirements do not involve inherently "evil" or socially deviant activities. In this regard, the FECA is a classic example of the sort of regulatory statute, violations of which are traditionally minor crimes which require no criminal intent. See e.g. Morissette v. United States, 342 U.S. 246 (1952). Accordingly, the existence of a specific, statutory "willfulness" requirement in a law such as this has generally been interpreted by the Department as requiring proof that the offender had an active awareness

that he was doing something wrong when he committed the transgression in question. See AFL-CIO v. FEC, 628 F.2d 97 (D.C. Cir. 1980). This showing may take the form of proof that the defendant knew the law, or that he had requested an advisory opinion from the FEC which he chose to disregard. More frequently, however, such proof is found in evidence that the offender sought to cover up his conduct, or that the substantive FECA crime at issue was part of larger felonious pattern of conduct.

Departmental Prosecutive Policy

It is the policy of the Criminal Division to prosecute campaign financing crimes under the FECA's penal sanction only in cases where the offense was either commited secretly and involved a substantial sum of money, or where it was part of a larger and more aggravated crime. All other campaign finance matters are routinely referred to the Federal Election Commission for the imposition of appropriate noncriminal penalties pursuant to the Act's civil enforcement mechanisms.

Relations with the Federal Election Commission

The duality of enforcement jurisdiction over campaign financing offenses requires a close and continuing relationship between the Criminal Division and the Federal Election Commission.

The official flow of information between the Department of Justice and the Federal Election Commission is governed by a formal Memorandum of Understanding that was signed in December 1977. The Public Integrity Section is responsible for maintaining this liaison with the FEC on a case-by-case basis. The Memorandum of Understanding between the Department and the Commission demands uniformity of approach and disposition with respect to these frequently sensitive matters.

All complaints alleging violations of the campaign financing provisions of the FECA which are received by United States Attorney and Bureau personnel should be brought immediately to the attention of the Election Crimes Branch of the Public Integrity Section. United States Attorney and Bureau personnel should not send these matters directly to the Federal Election Commission or otherwise attempt to deal themselves with the Commission's enforcement staff. In the event that an ongoing investigation in non-FECA offenses produces evidence indicating that campaign finance crimes may be involved in the pattern of conduct, the pertinent facts should be brought to the attention of the Public Integrity Section, as soon as is practical. The Memorandum of Understanding requires that in such circumstances the Department notify the Commission of the fact that it is investigating a campaign finance matter, unless such notification is prohibited by federal law (notably by Rule 6(e), Fed. R. Crim. P). The FEC's authority over the FECA's noncriminal penalties is complete and exclusive. 2 U.S.C. 437c(b), 437d(a)(6). Under no circumstances should United

States Attorney personnel undertake to waive or limit the Commission's authority. Plea agreements entered into with defendants who have reasonable exposure for violations of the FECA should contain an express disclaimer indicating nonwaiver of the FEC's residual noncriminal jurisdiction with respect to such

matters.

Under no circumstances should United States Attorney personnel file charges arising under 2 U.S.C. 437g(d) without first advising and obtaining clearance from the Public Integrity Section.

Investigative Jurisdiction

Criminal investigation of FECA campaign financing matters is conducted by the Bureau. Investigations leading up to all noncriminal sanctions are conducted exclusively by the Federal Election Commission.

It is therefore important to determine at an early stage of an investigation whether or not a matter is an appropriate candidate for criminal prosecution. If it is, the investigation is conducted by the Bureau. If it is not, the matter must be promptly referred to the Federal Election Commission.

D. REPORTING AND CAMPAIGN
ORGANIZATION OFFENSES

The bulk of the Federal Election Campaign Act deals with the organization of political committees, and the public reporting of political contributions and expenditures.

These substantive provisions do not easily lend themselves to prosecution under a criminal statute such as 2 U.S.C. 437g(d) that expressly demands specific intent. As such, it is the normal policy of the Department of Justice to refer reporting and organizational offenses to the Federal Election Commission for appropriate noncriminal disposition. Exceptions to this policy are rarely made, and then only where it appears that there was a clear motive to conceal material information from the electorate or where the FECA offenses were an essential part of a felonious pattern of conduct. See e.g. United States v. Finance Committee to Re-Elect the President, 507 F.2d 1194 (D.C. Cir. 1974).

All information indicating the possibility of violations of the FECA's reporting and campaign organizational provisions should be transmitted to the Public Integrity Section, which will refer them to the Federal Election Commission to the extent that such a referral is not barred by Rule 6(e), Fed.R.Crim.P. No criminal investigation or prosecution should be instituted involving matters presenting no federal violations other than alleged infractions of campaign reporting and organizational statutes without the express approval of the Public Integrity Section.

CHAPTER FOUR
ELECTION DAY PROCEDURES

The Department's function is to investigate and prosecute persons who violate the law, and not to intercede in the elective process itself. See In re Higdon, 269 F. 150 (D. Mo. 1920).

Except in matters involving racial overtones, the Department of Justice lacks authority to provide observers inside open polling stations. This is so even though there may be a reasonable basis for believing that criminal activities are going to occur. The bar to federal instrusion into the polls is partially a function of state laws governing who may be inside open polls, and partially a function of 18 U.S.C. 592.

In addition, federal law does not provide the Justice Department with jurisdiction to intercede on behalf of private litigants in civil election contests or to enjoin ongoing irregularities. Such matters are private in nature, and they are customarily redressed through 42 U.S.C. 1983.

Under exceptional circumstances, stationary surveillance of open polling places by the Bureau may be authorized by the Assistant Attorney General for the Criminal Division. However, such surveillance must be predicated on preexisting evidence that observable illegal activities (such as vote-buying) are likely to occur in the immediate vicinity of a specific open poll. The visual surveillance by the Bureau in such instances is directed at amassing evidence for use in subsequent prosecutions, and not at preventing or terminating the illegal conduct being observed. Requests for authorization to use this exceptional investigative technique should be addressed to the Public Integrity Section as far before the election in question as is feasible.

Special procedures are employed by Departmental, Bureau and United States Attorney personnel during and immediately before each national general election. These normally include the appointment of a senior Assistant United States Attorney in each District to serve as "Election Day Officer," assuring the availability of Special Agents to investigate election-related complaints throughout the judicial district, and coordination of the on-the-scene response to these complaints. The name of the Election Day Officer, and the telephone number at which citizen complaints may be made during the election, should be published in the media. The Public Integrity Section also maintains a compliment of election law specialists who are on duty while the polls are open during national

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