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Justice Department EnforcementDonsanto Says DOJ Does Not PursueCriminal Probes of Independent Groups
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, according to DOJ’s top election crimes official.
“You don’t see a whole lot of cases” where DOJ is looking at independent groups, said Craig Donsanto, the veteran director of the Election Crimes Branch in DOJ’s Public Integrity Section.
Donsanto made his comments Sept. 12 at a conference on corporate political activities in Washington, sponsored by the Practising Law Institute.
Asked directly during a panel discussion at the PLI conference 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, Donsanto said, “No.”
Gap Between DOJ, FEC
His comments appeared to distance DOJ from the legal position taken in recent years by the Federal Election Commission. For example, the FEC adopted a regulation (11 CFR 100.57) after the last presidential election saying that money solicited by a group to support or oppose a federal candidate can be considered a regulated campaign contribution, limited to $5,000 annually per contributor.
DOJ has backed the FEC in defending this regulation and others against a recent court challenge, but Donsanto’s comments indicated that department apparently does not view the FEC rules as a strong enough basis for a criminal case. That stance could disappoint campaign reform supporters and officials in the presidential campaign of Sen. Barack Obama (D-Ill.), who have called on the Justice Department to aggressively pursue alleged instances of independent groups being set up to intervene in the current race for the White House.
Following the 2004 campaign, the FEC pursued enforcement cases and levied large fines against some of the biggest so-called Section 527 groups active in that campaign, arguing that their activities were regulated under campaign finance law. Critics of the groups have suggested that their organizers and contributors now face an even greater risk of legal action now because of the precedents set by the past FEC enforcement cases.
Also, a federal judge in Richmond, Va., recently rejected a bid for an injunction to block FEC restrictions on independent groups operating in the current campaign season (The Real Truth About Obama Inc. v. FEC, E.D. Va., No. 3:08-cv-00483-JRS, filed 7/30/08).
RTAO Lawsuit, Keeney Letter
The Richmond case was brought by a group called the Real Truth About Obama (RTAO), which filed an appeal notice Sept. 12 saying it would ask the U.S. Court of Appeals for the Fourth Circuit to block the FEC rules. The Justice Department was named in the RTAO lawsuit, along with the FEC, and has joined in defending the FEC’s regulations in court.
In addition, John Keeney, the deputy assistant attorney general for DOJ’s Criminal Division, sent a letter in June to Fred Wertheimer, head of the reform group Democracy 21, saying that DOJ would “vigorously pursue instances where individuals or organizations knowingly and intentionally violate the clear commands” of the federal campaign finance laws. Keeney’s letter did not specify FEC rules for independent political groups, but it responded to a letter from Wertheimer calling upon DOJ to pursue criminal investigations of Section 527 groups that “knowingly and willfully violate the law” by spending unlimited “soft money” contributions to influence federal elections.
Other letters sent to Keeney in August by Obama’s campaign lawyer, Robert Bauer of the firm Perkins Coie, called on DOJ to pursue a criminal probe of a newly revealed independent group called the American Issues Project (AIP), which Bauer suggested was set up to collect unlimited funding for television ads attacking Obama in the presidential race. One of the Bauer letters specifically demanded a Justice Department probe of AIP contributor Harold Simmons, a Texas billionaire. The letter–citing the FEC regulation (11 CFR 100.57) on soliciting contributions–charged that Simmons violated campaign contribution limits by providing over $2.8 million to the American Issues Project.
WRTL Decision Called ‘Subjective.’
But, Donsanto’s comments called into question whether DOJ would pursue such a case. He called “subjective” the legal standard for activities of independent political groups established by the Supreme Court last year in its ruling in Federal Election Commission v. Wisconsin Right to Life Inc. (WRTL).
The 5-4 majority ruling in the WRTL case, written by Chief Justice John Roberts, said that financing of political messages by independent groups could be regulated only if the message was “susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified federal candidate.”
Donsanto indicated that the legal standard established by the WRTL opinion was not clear enough for a criminal prosecution.
Donsanto is the top Justice Department career employee in charge of prosecuting campaign finance criminal cases. He reviews all such cases nationwide before they can proceed, he said.
DOJ currently has 77 active investigations of election crimes cases, Donsanto told the PLI conference.