Justice Softens Stance on BCRA
Senior Justice Department officials said Friday they do not intend to prosecute violations of federal campaign finance laws involving political speech, signalling that the more controversial and complex
areas of the new law including the ban on soft money, coordination and issue ads may be off-limits for criminal charges.
“BCRA did not change what a crime is,” Craig Donsanto, director of the Justice Department’s election crimes branch, told lawyers, campaign operatives and other members of the regulated community Friday during a presentation at Georgetown University Law Center.
Donsanto said the agency would do its utmost “not to interfere with provisions in BCRA that deal with political speech.”
“Speech-based offenses are generally not the sort of thing we’re going to be interested in,” he said, though he declined to answer specific questions from the audience about how the agency might handle a case involving the prohibited solicitation of soft money.
Since BCRA’s enactment, attorneys around town have been warning political actors of the potential dangers related to the new criminal penalties contained in the law.
And while the statute is being challenged at the Supreme Court on a number of fronts, the earliest the nine justices will issue their decision is Dec. 2.
But Donsanto and his immediate supervisor, Noel Hillman, the new chief of DOJ’s Public Integrity Section, seemed to send a message to the community not to worry.
“We’re not going to turn every [campaign finance] violation into a criminal investigation. What we’re really looking for are the bad guys,” Hillman said, noting that the agency would pursue campaign finance crimes in the same manner that it goes after drug crimes.
Hillman told his audience that while BCRA will make it easier to prosecute and investigate crimes, the Justice Department intends to concentrate on violations at the core of the new statute — naming large foreign contributions and coercion by corporate executives of their employees for political contributions as examples of the types of crimes the department will pursue.
Donsanto echoed that sentiment, stating that only violations that strike the familiar “heartland” of the statute would be of interest to prosecutors.
He also repeatedly stressed that “99.5 percent of the violations of the Federal Election Campaign Act are committed without knowing and willful intent” and said the Justice Department will continue only to go after those who could be shown to have flagrantly “flouted” the law.
“Nothing in BCRA changed that. Nothing,” Donsanto said.
Noting that BCRA is “terribly complicated,” Donsanto suggested that prosecutions would be unlikely for violations of the law’s more complex requirements.
“Unless the application of the law to the facts is crystal clear, so that there can be no dispute of it, your offender has a built-in intent defense,” Donsanto advised.
Indeed, although Donsanto has spent more than three decades as a prosecutor, his remarks provided potentially pleasing advice to an audience that included a number of top-notch defense attorneys who represent candidates, campaigns and political parties.
Hillman had touched some raw nerves in the campaign finance community last September when he announced that there was a “new sheriff” in town and indicated the government will be aggressively pursuing violations of campaign finance law now that it has the tools to do so.
But he seemed to back away from his remarks Friday, stating that “while I may be the new sheriff, I’m not a cowboy.”
It seemed to be more what Donsanto and Hillman didn’t say Friday, however, that concerned those operating in the fumbling and uncertain world under BCRA.
“I was reassured listening to the first panel that nothing has changed,” Jan Baran, a top GOP election lawyer, said during a follow-up discussion. “I’m not sure that’s true, however. BCRA did pass a whole lot of new laws. I think the question is, how are the new laws going to be enforced.”
FEC Chairwoman Ellen Weintraub, who also sat on Friday’s panel, said the two federal agencies are in the process of renegotiating a new memorandum of understanding as a guide for how the two entities will carry out their respective duties with regard to the enforcement of the law.
Weintraub promised the new agreement — which has not been altered in 26 years — would be done by June 30, 2004, “after the McConnell case comes down, before the conventions, in time to give people some useful guidance” prior to the 2004 elections.
Weintraub and other FEC officials also pledged they would work to get cases moving more quickly. But she did not provide specifics on how the FEC will quicken the pace of enforcement actions.