Are they really safe?

Published on September 16, 2008
by Reid Cox

File Under: Enforcement, Political Committees & 527s

In an important campaign finance story published today ($), the BNA's Money & Politics Report states in a headline that the Justice Department's top election crimes official told a conference last Friday that "DOJ Does Not Pursue Criminal Probes of Independent Groups."  

But did the director of DOJ's election crimes branch,  Craig Donsanto, really take independent groups off the criminal hook, or just their donors? 

Although I wasn't at the conference, and thus didn't  hear the comments first hand, it certainly appears from the rest of the story that the only position staked out by DOJ, through Donsanto, was not to criminally pursue the donors, thus tacitly leaving the door open to criminal investigations of the independent groups who solicit and accept the donations.  In other words, it may not be the independent groups but rather only their donors who can rest easier, at least based on Donsanto's comments.

The story's lead pretty clearly states that the news was that the "Justice Department does not pursue criminal investigations of contributors to independent political groups, even when they give $1 million or more and even when their money is solicited based on an appeal to support or oppose a candidate."   And, that lead seems to accurately capture the question posed that apparently prompted Donsanto's comments.  Specifically, the report explains that Donsanto was "[a]sked whether he would approve of a case against a hypothetical contributor to a Section 527 group who gave a seven-figure donation based on a request to help or harm the prospects of a particular presidential candidate."  According to the story, "Donsanto said, ‘No,'" he would not approve such a criminal case against such "a hypothetical donor."  So the donor is safe, but that doesn't mean the independent group is, as well.

Moreover, this seems to be consistent with what the Federal Election Commission is doing on the civil side with its own enforcement, where the target is rarely, if ever, the donor, but is instead the independent group that solicited and/or accepted the donation.  Nevertheless, it's important to note that in these civil enforcement cases brought by the FEC, donors may-and often do-find themselves subject to discovery and depositions, as pieces of evidence to be used by the FEC against the independent group.  Thus, while "contributors" may be off the criminal hook, and seem not usually to be targets of the FEC's civil enforcement, none of this means that those donors won't have to play a role-at their expense-in those investigations.  Unfortunately, such is the peril of deciding to band together with others to exercise your First Amendment rights today.