The Case for Limiting Federal Criminal Jurisdiction over State and Local Campaign Contributions

60 Pages Posted: 13 Dec 2012 Last revised: 18 Feb 2017

Anthony J. Gaughan

Drake University Law School

Date Written: 2012

Abstract

The thesis of this article is that Congress should amend the honest services fraud statute, 18 U.S.C. §1346, to bar the Justice Department from using it to prosecute individuals for making or receiving allegedly “corrupt” campaign contributions in state or local elections. This reform is necessary for three reasons. First, it is deeply unfair to subject state and local defendants to federal criminal liability on the basis of a vague federal statute and at a time when campaign finance law at all levels of government is in a state of flux. Second, federal prosecutors’ controversial use of Section 1346 to prosecute state and local candidates and contributors undermines the Justice Department’s reputation for political neutrality. Third, Section 1346 prosecutions of state and local candidates and contributors contradict basic principles of federalism. Curtailing the use of the honest services fraud statute will prevent federal prosecutors from imposing their own vision of campaign finance law on candidates and contributors in state and local elections. It will restore state attorneys general to their proper place as the principal enforcers of state campaign finance law. And it will help reduce, if not eliminate, the growing perception that political considerations improperly influence honest services fraud prosecutions.

Keywords: election law, campaign contributions, federal jurisdiction, criminal law, honest services fraud

Suggested Citation

Gaughan, Anthony J., The Case for Limiting Federal Criminal Jurisdiction over State and Local Campaign Contributions (2012). Arkansas Law Review, Vol. 65, No. 3, October 2012. Available at SSRN: https://ssrn.com/abstract=2188468

Anthony J. Gaughan (Contact Author)

Drake University Law School ( email )

Des Moines, IA 50311
United States

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