News
February 6, 1998

Federal Criminal Statutes Applicable to Political Activity

Arnold & Porter Article
The primary federal criminal laws under which corporate officials and their employers may be prosecuted for impermissible activity in the campaign finance, gift and lobbying disclosure areas are summarized below. Each of the states and many localities also have adopted criminal laws in these laws.
 
The Federal Election Campaign Act of 1971 as amended.
2 U.S.C. 431 et seq. ("FECA").

 
Knowing and willful violations of FECA are subject to criminal sanctions. See 2 U.S.C. § 437g(d).
 
If during an investigation of an alleged campaign finance violation the Federal Election Commission (the "FEC") determines by majority vote that there is probable cause to believe that such a knowing and willful violation has occurred or is about to occur, the FEC may refer the alleged violation to the Department of Justice for prosecution.
 
Mail and Wire Fraud. 18 U.S.C. § 1341, 1343.
 
Use of the mail or the telephone in interstate commerce for the purpose of carrying out any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises is a federal crime.
 
Conspiracy to Commit a Federal Offense. 18 U.S.C. § 371.
 
Two or more persons who conspire to commit a federal offense, such as a violation of federal campaign finance law, are subject to criminal penalties.
 
Aiding and Abetting the Commission of A Federal Crime. 18 U.S.C. § 2.
 
Anyone who aids and abets a federal crime or who willfully causes an act to be done which if directly done by him or her or another would be a federal criminal offense, is punishable as a principal.
 
Making False Statements to A Federal Agency, the Judiciary or Congress. 18 U.S.C. 1001.
 
Any person who knowingly and willfully
 
(1) falsifies, conceals, or covers up any trick, scheme, or device a [sic] material fact;
 
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
 
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry in any matter within the jurisdiction of the executive, legislative or judicial branch of the federal government is subject to criminal sanction.
 
This section would apply to purposefully inaccurate FEC reports. It also has been used by federal prosecutors to indict publicly held corporations for falsifying their SEC reports, under the theory that by not disclosing illegal campaign contributions and other unlawful activities that could affect the health and potential legal liability of the corporation, they withheld legally required information. Federal prosecutors also have used the securities laws directly, particularly the laws prohibiting the keeping of false books and records and the falsification of such records (15 U.S.C. §§ 78m(b)(2)(A), 78m(b)(5), 78ff(a)).
 
18 U.S.C. § 1001 expressly applies to documents that are required by law to be filed with the Congress. Therefore, knowingly and willfully filing an inaccurate lobbying report also could subject a company to criminal sanctions.
 
Bribery. 18 U.S.C. § 201(b).
 
Giving anything of value to a federal (or D.C.) public official, or someone selected to become such a public official, with the intent to influence an official act is a criminal offense. Criminal penalties may be imposed on both the giver and the public official who accepts the bribe.
 
Illegal Gratuities. 18 U.S.C. § 201(c).
 
Giving anything of value to a federal (or D.C.) public official, a former official, or someone selected to become a public official "for or because of any official act performed or to be performed" by the public official is a criminal act. Criminal penalties may be imposed on both the giver and the public official who accepts the illegal gratuity.
 
Some federal courts have read out of the gratuities statute the requirement that the gratuity be provided because of a specific official act. In such "status" gratuity cases, the courts have said that providing or accepting a gift that is given "because of the official's status as a public official" is a violation of the law.
 
The federal appeals courts are split on the question and the matter currently is under review by the U.S. Court of Appeals for the D.C. Circuit.
 
* This memorandum provides general information and does not constitute legal advice.
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