In the wake of the Wisconsin case, and in the arguments more generally about “’coordination,” it has been suggested that not too much should be made of the dangers of criminal investigation in campaign finance cases.  Hard-charging investigative techniques employed in the service of creative theories of liability are staples of white-collar criminal enforcement.  Why, critics such as Rick Hasen ask, should campaign finance law enforcement be different?

The question of whether criminal campaign finance investigations are just like any other is worth careful consideration, detached from a lively, high-stakes conflict like Wisconsin’s.  The federal experience is instructive.

In the past, DOJ has formally, as a matter of policy, counseled its prosecution teams that the investigation of election activity is “politically sensitive” and requires careful attention to assure that there is the “appearance of complete enforcement impartiality.”  U.S. Department of Justice, Federal Prosecution of Election Offenses (6^th Ed. 1995) at 15.  The 1977 Memorandum of Understanding the Department of Justice negotiated with the FEC emphasized that the “Commission and the Department mutually recognize that all violations of the Federal Election Campaign Act… even those committed knowingly and willfully, may not be proper subjects for prosecution as crimes…”  Only certain offenses, especially ones that, among other factors, were “significant and substantial,” were appropriately enforced through the criminal justice system. U.S. Department of Justice, Federal Prosecution of Election Offenses (7^th Ed. 2007)(Appendix B).

This MOU was thought to require renegotiation in light of the Congress’ enactment of McCain-Feingold.  The new law amended the FECA’s structure for criminal enforcement, increasing penalties, extending the statute of limitation and mandating the promulgation of a sentencing guideline for serious violations. DOJ and the FEC have yet to arrive at a new agreement.  And so it is still not known where civil “knowing and willful” liability ends and exposure to criminal prosecution begins.

But in thinking about the coordination rules and their enforcement, it is notable that in the very statute, McCain-Feingold, that generated renegotiation of a new MOU, Congress elected to refrain from detailing the elements of illegal coordination.  It referred the question to the FEC for its consideration, specifying only that a new rule could not require a formal agreement or understanding as a condition of liability.  The job was left to the FEC.  The agency has been at times more permissive than reform organizations would like, and at other times it has been unable to agree.  The rule in different versions has been the subject of litigation, and the Commission itself is divided over its interpretation and application.  This is not a legislative history or course of rulemaking that favors routine resort criminal enforcement in the hard cases.

The 1977 MOU remains valuable in understanding how discussions of criminal enforcement of this and other complex provisions of the law can run into trouble. Of particular interest is the standard focusing on whether a violation is so “significant and substantial” as to warrant criminal enforcement. Some would say that coordination rules are critical to the effective administration of the law, and violations would be “significant” in nature and substantial in the amounts spent. The rules are significant, but in critical respects they are also unclear, and it is a stubborn fact about the campaign finance laws that the significant questions are often ones to which there is no clear answer, and over which hang constitutional doubts of varying degrees of gravity.

There are now plenty of questions of that kind about the coordination rules. Among them:

Should candidates be allowed to support an independent committee’s fundraising if they don’t expressly appeal for funds? If so, how? What legal consequences, if any, attach to candidate web sites or public statements that in practical terms help inform independent committee advertising strategies?   To what extent is the independence of a committee compromised by its leadership’s close personal and professional association with the candidate?

All of these and other questions are significant.  They are being argued and complained over, and legislative proposals, such as a recent one in the Senate sponsored by Senator Leahy, have been introduced.  To many observers, the answers will determine the utility of contribution limits–the point of having such limits at all.  But these questions are not obviously “significant” in the sense that criminal prosecution is the means by which the answers should be established.  There are problems of notice, and in view of this uncertainty, a reasonable, compelling concern to prevent the use, or the appearance of the use, of the criminal justice system to gain political ground or settle political scores.

Of course, there have been cases where the coordination is blatant, and the law was criminally enforced because the rules were clearly violated.  But the hard questions of what is fit for criminal enforcement and how investigations should be conducted don’t arise in the straightforward cases, and there is no reason to believe that these investigations must be ineffective if they are conducted with the due concern DOJ has expressed for the  “political sensitivity” of these cases, and the need for “the appearance of complete enforcement impartiality.”