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Tougher Penalties, More Prosecutions

By William J. Farah

Although the McCain-Feingold Campaign Reform Act took effect almost 18 months ago, little attention has been paid to changes it made in the enforcement of federal campaign finance law, including big penalties for violations and sentencing guidelines that mandate incarceration for most criminal convictions. Notably, the Act ' Campaign P.L. 107-155, officially called the Bipartisan Campaign Reform Act of 2002 (BCRA) ' has increased the risk of criminal prosecution as well as the penalties.

Congressional directives to treat campaign finance violations more seriously have led the Federal Election Commission (FEC) and Department of Justice (DOJ) to reconsider the 1977 Memorandum of Understanding (MOU) that defined their respective enforcement roles and, importantly, determined the cases that are appropriate for criminal prosecution. While election enforcement officials claim publicly that the new MOU will not alter the basic institutional equation for campaign finance enforcement (see Justice Officials Give Election Lawyers Mixed Message on BCRA Enforcement, BNA Money & Politics, Feb. 2, 2004), it is difficult to imagine that DOJ will not assume a more pro-active, assertive enforcement posture with regards to campaign finance violations.

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