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

federal elections to authorize investigations and grand jury subpoenas, and to provide advice to the Election Day Officers. Special attention is given to preserving evidence that might lose its integrity with the passage of time.

Preliminary investigations may be authorized during the election by the Election Day Officer or other United States Attorney personnel.

The results of preliminary investigations are reviewed by the Election Crimes Branch, which determines, in consultation with affected United States Attorneys, which cases should be pursued through full field investigations.

As with all election matters, the emphasis is on detection, evaluation, and prosecution rather than on prevention.

TABLE OF CASES

Page

AFL-CIO v. FEC, 628 F.2d 97 (D.C. Cir. 1980) ........ 33, 38, 41, 54

Anderson v. United States, 417 U.S. 211 (1974)

Athens Lumber Co. v. FEC, 718 F.2d 383 (11th Cir. 1983)....

Badders v. United States, 240 U.S. 391 (1916)

Baker v. Carr, 369 U.S. 186 (1962)

Blachly v. United States, 380 F.2d 665 (5th Cir. 1967)

Brehm v. United States, 196 F.2d 769 (D. Cir. 1952),

California Medical Association v. FEC, 641 F.2d 619 (9th

Cir. 1981), aff'd, 453 U.S. 182 (1981)

47

Civil Service Commission v. Letter Carriers, 413 U.S. 548 (1973).

32

Cort v. Ash, 422 U.S. 66 (1975)

36

...

9

8

26

.....

6,9

16

In re Coy, 127 U.S. 731 (1888)...

Crolich v. United States, 196 F.2d 879 (5th Cir. 1952),

cert. denied, 344 U.S. 830...

Ex parte Curtis, 106 U.S. 371 (1882)

Duncan v. Poythress, 657 F.2d 691 (11th Cir. 1981)

Durland v. United States, 161 U.S. 306 (1896)

Elrod v. Burns, 427 U.S. 347 (1976)..

29, 30, 52