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Congress Will Have Say on Sentencing

Panel Urges Congress to Make Penalties for Campaign Violations Even Stricter

Campaign finance crime is about to lead to serious prison time under stiff sentencing guidelines that should be toughened even more, a federal panel advised Congress last week.

The five-member U.S. Sentencing Commission, which sets the formulas used by federal judges to calculate sentences in criminal cases, formally gave Congress notice of the tough new guidelines it adopted in January. Now Congress can decide whether to reject or make any changes to the guidelines, which will impose significant prison terms for the first time on anyone involved in illegal campaign contributions, from donors to candidates.

The guidelines will become effective Nov. 1, unless Congress takes action. The severe punishments recommended by the commission were established last year with the enactment of the Bipartisan Campaign Reform Act.

Although a ruling by a special three-judge panel earlier this month has drastically reworked major portions of the law and the entire statute is in a state of flux while awaiting Supreme Court review, the sentencing provisions are not affected.

“The Commission believes that federal sentencing policies should be established with a goal of controlling campaign finance crimes. The amendment promulgated by the Commission reflects the seriousness of these offenses that strike at the heart of the election process,” the panel’s report said. “The Commission hopes that the increased statutory maximum sentences provided by Congress, as complemented by the significant penalties indicated by the new guideline, will work to deter such offenses.”

Despite the harsh penalties already adopted, the commission — made up of federal judges and legal experts — recommended that Congress go even further by calling for five-year prison terms for any campaign finance violation involving more than $10,000.

Under the new campaign finance law enacted last year, five-year sentences are to be imposed only for matters involving more than $25,000. For matters involving $10,000 to $25,000, the penalty is a two-year prison term.

“The Commission believes that the current penalty distinction between two year offenses (for those offenses which involve more than $10,000) and five year offenses (for those offenses which involve $25,000 or more), … overemphasizes the differences in culpability between these groups of offenders,” the panel said in the report sent to Capitol Hill last week.

“Given the serious nature of all Federal Election Campaign Act offenses, as recognized by Congress in its directives to the Commission, the Commission believes that all FECA offenses that involve more than $10,000 should be subject to the five-year statutory maximum,” the report said. “This result would better equip sentencing courts to calibrate penalties commensurate with the seriousness of the offense — a fundamental objective of the federal sentencing guidelines,” the commission added.

The commissioners also recommended that Congress beef up the criminal penalty for forcing someone to contribute money to a political action committee through intimidation, threats to job security or financial reprisals or for failing to inform employees that they have a right to refuse to make PAC contributions.

The commissioners believe that this entire category of illegal conduct should be treated as a felony. Currently, it is classified as a misdemeanor unless it involves more than $25,000 in illicit solicitations.

“These crimes involve threat and intimidation as well as the unwilling involvement of numerous co-participants,” the commission noted. “Although these aggravating factors constitute sentencing enhancements in the new guideline, the low statutory maximum prescribed for this serious criminal conduct essentially precludes operation of these enhancements. For these reasons, the Commission recommends that Congress amend the penalty provisions … to provide a potential statutory maximum term of imprisonment of five years, irrespective of the amount of money involved in such offenses.”

In addition, campaign officials or candidates who pretend to be communicating or speaking on behalf of their opponent should have the book thrown at them. The typical situation involving this type of dirty politics is when one campaign generates some sort of campaign communication which purports to be from an opponent’s campaign and distorts the rival candidate’s viewpoint.

“Such communications are especially malicious in that they are designed to confuse the electorate to the opponent’s detriment,” the commission said.

Federal Election Commission staff advised the Sentencing Commission that such offenses, even when less than $25,000 is expended, can have great impact on the outcome of an election. This is particularly true in House elections and, to a lesser extent, Senatorial contests in less populous states, the report said.

The penalty for this type of fraudulent campaign misrepresentation should be increased to a five-year term, the commissioners recommended.

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