Campaign Finance Laws: Felony Or Misdemeanor?

Campaign finance laws in the United States have been a contentious political issue for a long time. Violating these laws can result in civil or criminal fines, and even imprisonment. While a violation is not grounds for removal from office, it could constitute a high crime or misdemeanour for which a sitting president could be impeached.

In 2018, Michael Cohen, former lawyer to then-President Donald Trump, pleaded guilty to eight felonies, two of which were violations of campaign finance law. Trump himself was implicated in these violations, but claimed that they were not actual crimes.

This instance of campaign finance law violation is not an isolated incident. In 2013, the Federal Election Commission fined then-President Barack Obama's 2008 campaign $375,000 for failing to report financial paperwork.

Criminal consequences of breaking campaign finance laws

Campaign finance laws in the United States have long been a contentious political issue. While most campaign finance laws are enforced by the Federal Election Commission (FEC) with civil fines, the Department of Justice (DOJ) has concurrent criminal jurisdiction over willful violations. The criminal consequences of breaking campaign finance laws can vary depending on the specific law violated and the circumstances of the violation. Here are some possible criminal consequences:

Criminal Fines and Imprisonment

Breaking campaign finance laws can result in criminal fines and, in some cases, imprisonment. The penalties can depend on the value of the illegal contributions or expenditures involved. For example, in the United States, a campaign finance violation must exceed certain monetary thresholds to be considered a crime. A misdemeanor violation typically requires the "thing of value" to exceed $2,000, while a criminal felony violation requires a threshold of $25,000. These thresholds can determine the severity of the criminal consequences.

Probation and Parole

Individuals convicted of felony campaign finance violations may face additional consequences such as probation and parole. These are periods of supervised release before and after imprisonment, respectively, during which the offender must abide by certain conditions set by the court.

Collateral Consequences

Felony convictions for campaign finance violations can also result in collateral consequences, which are indirect penalties that result from the criminal conviction. These can include a prohibition on owning firearms, ineligibility for certain occupations or government benefits, and restrictions on certain civil rights, such as the right to vote or hold public office.

Impeachment for Sitting Officials

While a campaign finance violation is not grounds for automatic removal from office, it could potentially lead to impeachment proceedings for a sitting official, including the President. In the United States, Congress has the power to impeach and remove a President if a majority of the House of Representatives votes in favour and two-thirds of the Senate agrees. However, impeachment is a political process, and the decision to pursue it rests with the legislative branch.

Pardon and Presidential Immunity

The President of the United States has the power to pardon criminal violations of campaign finance laws for anyone other than themselves. The question of whether a President can pardon themselves is a matter of legal debate, with the majority view being that self-pardon is not constitutionally allowed. Additionally, presidential immunity from liability is generally limited to actions taken in their official capacity as head of state and does not typically extend to actions taken during a political campaign.

In conclusion, the criminal consequences of breaking campaign finance laws can vary widely depending on the specific circumstances and the jurisdiction in which the violation occurred. These consequences can range from criminal fines to imprisonment, probation, parole, and collateral consequences. Additionally, while impeachment is not an automatic outcome, it remains a possibility for sitting officials, including the President, depending on the political will of the legislative branch.

Civil fines for breaking campaign finance laws

Civil fines are a common penalty for breaking campaign finance laws. In the US, the Federal Election Commission (FEC) has exclusive jurisdiction over the civil enforcement of federal campaign finance law. The FEC's Office of General Counsel handles civil enforcement of violations, which can be addressed through alternative dispute resolution or administrative fines.

Alternative dispute resolution involves reaching a settlement through mutual consent, often including remedial measures such as hiring a compliance officer to address any future campaign finance issues. Administrative fines, on the other hand, are assessed for late or non-filed reports based on a clear schedule.

The amount of civil fines varies depending on the specific violation, the individual or entity responsible, and the extent and willfulness of the violation. For example, in 2013, the FEC fined then-President Obama's 2008 campaign $375,000 for failing to report financial paperwork. This was considered a relatively benign error, but the fine was substantial given the amount of money the campaign brought in.

Civil penalties for breaking campaign finance laws can also include restitution and being barred from engaging in any further campaign activity. In addition to civil fines, individuals or entities may also face criminal prosecution and stiff penalties, including prison sentences, for knowing and willful violations of campaign finance laws.

Impeachment of a sitting president

In the United States, impeachment is the process of bringing charges against a sitting president for alleged misconduct, with the penalty of removal from office. The impeachment process is typically carried out in three steps: an impeachment inquiry, impeachment by the House of Representatives, and a trial in the United States Senate.

Firstly, the House of Representatives investigates through an impeachment inquiry. This is not a required stage, but it is often the first step in the process.

Secondly, the House must pass, by a simple majority vote, articles of impeachment, which constitute the formal charges against the president. Upon the passage of these articles, the defendant has been impeached.

Thirdly, the Senate tries the accused. In the case of a presidential impeachment, the chief justice of the United States presides over the proceedings. The trial takes the form of a standard trial, with the Senate having the right to call witnesses and each side having the right to cross-examinations. The House members, collectively referred to as managers during the trial, present the prosecution case, and the impeached president has the right to mount a defence with their own attorneys. After hearing the charges, the Senate deliberates in private. A two-thirds supermajority is required to convict a person being impeached.

If the president is found guilty, they are removed from office and may be barred from holding future office. If they are not found guilty, they may continue to serve in office. It is important to note that impeachment proceedings are remedial rather than punitive in nature, and a party may still be subject to criminal or civil trial, prosecution, and conviction under the law after removal from office.

While the violation of campaign finance laws can be a criminal offence, it is unclear if this would be grounds for impeachment. The Constitution limits the grounds of impeachment to "treason, bribery, or other high crimes and misdemeanors", without defining "high crimes and misdemeanors". Campaign finance violations could potentially fall under this category, depending on the specific circumstances and the interpretation of the law.

Prosecution of campaign finance violations

Campaign finance violations are indeed prosecutable offenses, and the prosecution of such violations can result in criminal convictions. The Federal Election Commission (FEC) is responsible for enforcing federal campaign finance laws and has exclusive jurisdiction over civil violations of the Federal Election Campaign Act (FECA). The FEC can impose civil fines for violations of campaign finance laws.

However, the Department of Justice (DOJ) has concurrent criminal jurisdiction and is responsible for prosecuting "knowing and willful" FECA violations that meet certain monetary thresholds. This means that individuals who are found to have intentionally and deliberately violated campaign finance laws can face criminal charges.

An example of a campaign finance violation resulting in criminal prosecution is the case of Ryan Phillips, who was accused of misappropriating funds from a political campaign and using them for personal expenses. Phillips pled guilty to making false statements to a federal agency and was sentenced to probation.

Another notable case is that of Michael Cohen, former lawyer to President Donald Trump, who pleaded guilty to two counts of campaign finance violations. Cohen admitted to arranging payments to keep a former Playboy model and a porn star quiet during the 2016 election about alleged affairs with Trump.

These cases demonstrate that campaign finance violations can result in criminal prosecutions, particularly when there is evidence of willful and knowing violations of the law. The prosecution of such cases serves to uphold the integrity of the election process and deter future violations.

The Federal Election Commission

The FEC is led by six commissioners who are nominated by the president and confirmed by the Senate. No more than three of the commissioners can belong to the same political party. The commission had fewer than six commissioners for several years after the resignation of Ann Ravel (Democratic) in March 2017. This led to a period of inactivity from late August 2019 to December 2020, with the exception of May 2020 to July 2020, due to a lack of quorum. In December 2020, three commissioners were appointed to restore a quorum, but deadlocks arising from an equal number of members from the Republican and Democratic parties have resulted in some controversial investigations not being pursued.

The FEC's powers include the ability to conduct investigations, report misconduct to law enforcement, pursue settlements with candidates, and bring civil actions in court to enforce campaign finance regulations. They can also publish advisory opinions on campaign finance issues and issue campaign finance regulations. However, the FEC has been criticized for its bipartisan structure, which renders the agency "toothless" in the eyes of some critics. The even number of commissioners and the supermajority requirement have been criticized as a "set up for deadlock and political shenanigans."

In terms of the consequences of breaking campaign finance laws, while most campaign finance laws are enforced administratively by the FEC with civil fines, the Department of Justice (DOJ) has concurrent criminal jurisdiction over willful violations of the campaign finance laws. This means that violating certain campaign finance laws can indeed result in criminal offenses.

Frequently asked questions