Hillman Leads Justice Dept. Effort to Crack Down on Campaign Violations
The new head of the Justice Department’s Public Integrity Section has put the campaign finance community on notice that there’s a “new sheriff” in town, and that the government will be aggressively pursuing violations of campaign finance law now that it has the tools to do so.
With fresh criminal sentencing guidelines in place as part of the Bipartisan Campaign Reform Act of 2002, Public Integrity Chief Noel Hillman informed the legal community that the government intends to crack down on “pervasive” violations of the nation’s campaign finance law and may even launch criminal investigations based on conciliation agreements from Federal Election Commission enforcement cases.
Hillman — a former trial attorney on the DOJ Campaign Finance Task Force who was elevated to his current position in January — also hinted that an announcement of a new criminal investigation stemming from an FEC enforcement case could be on the horizon.
The change in policy stems largely from new guidelines put in place earlier this year by the U.S. Sentencing Commission. The stiff criminal penalties include mandatory jail time for certain knowing and willful violations of campaign laws that reach a certain threshold based on the dollar amount of the violations.
Although Hillman did not return calls seeking comment for this story, some election lawyers who heard his tough talk at the Practicing Law Institute’s annual seminar on “Corporate Political Activities” earlier this month expressed surprise and worry and even cautioned that they may be forced to routinely advise their clients to invoke the Fifth Amendment in FEC matters for fear that doing otherwise could lead to criminal charges.
“The long and short of what he said is they have the arsenal now to zealously prosecute election crimes and they fully intend to do so,” explained Kenneth Gross, a prominent election law attorney and co-chairman of the seminar.
But Gross and others are concerned that too radical a change in Justice Department procedures with regard to criminally pursuing FEC matters could dramatically change the rules of engagement in the enforcement landscape — for both the FEC and the regulated community.
“It ups the ante considerably,” Gross said, explaining that cooperation with FEC investigations could be compromised if people fear criminal prosecution and opt to invoke their Fifth Amendment rights or attempt to gain immunity before settling a case. “There are all sorts of adverse implications from this type of approach.”
Other lawyers echoed that sentiment.
“No one facing a realistic threat of criminal prosecution would willingly give the FEC incriminating information,” remarked one campaign finance attorney who works mostly with corporate clients.
“If a corporation is under FEC investigation for one of the ‘core’ violations of [the Federal Election Campaign Act] — i.e., conduit contributions, contributions by foreign nationals — then I would reluctantly advise the company not to cooperate with the FEC unless there is an agreement that the FEC and DOJ investigations will be carried out jointly.”
The same attorney, however, said a realistic assessment of the threat of criminal prosecution would probably be tied to the severity of the violation — with simpler infractions of the rules still being handled by the FEC alone.
“What’s a realistic threat of criminal prosecution? In the last two and a half years, I think that the Public Integrity Section has had maybe five convictions for FECA violations,” the lawyer explained. “If BCRA is upheld, I think that will increase, but again only with regard to core violations of FECA. The more common FECA violations will continue to be handled with civil penalties.”
Cleta Mitchell, a Republican campaign finance attorney who represents the National Rifle Association and other clients, said she finds the new, stiffer penalties and threat of criminal prosecution “frightening” — but she places blame squarely on Capitol Hill and not with the Justice Department.
“I don’t think DOJ has a choice and that Congress made it clear in BCRA that it intended to have these penalties increased,” Mitchell, an outspoken critic of the new campaign finance law, said. “Congress is the one that included the requirement of having uniform sentencing guidelines enacted by the commission. What is amazing to me is that Congress appears to have been having an out of body experience in passing BCRA.”
Mitchell said she believes that rather than having the Justice Department simply “trolling” closed cases for matters to investigate, the FEC and the Justice Department should revisit a memorandum of understanding that the two agencies entered into several decades ago to delineate their separate responsibilities.
“There does need to be clarification now that there have been enhanced criminal penalties,” Mitchell said. “If you deal with one agency, what impact does that have on dealing with another?”
Michael Toner, a GOP member of the FEC, agreed.
“I strongly believe the FEC should sit down with the DOJ and revise the memorandum of agreement between the two agencies that governs the jurisdiction of each,” Toner said, noting that both agencies are still operating under an MOA signed in the late 1970s that has not been revised in 25 years.