As previously stated, prosecution under FECA’s criminal
provision requires proof that the defendant was aware that his or her
conduct was generally unlawful. When the conduct is charged under
Section 371, however, the proof must also show that the defendant
intended to disrupt and impede the lawful functioning of the FEC.
Indeed, the crux of a Section 371 FECA case is an intent on the part of
the defendant to thwart the FEC. That is a higher factual burden
than is required under 18 U.S.C. § 1001, and is arguably a greater factual
burden than is required by Section 30109(d).
The use of Section 371 in this manner has been approved by
the Third, Fifth, and D.C. Circuits. United States v. Hsia, 176 F.3d
517, 521 (D.C. Cir. 1999); United States v. Curran, 20 F.3d 560, 562
(3d Cir. 1994); United States v. Hopkins, 916 F.2d 207, 212 (5th
Cir. 1990).
(c) Public financing crimes relating to presidential
campaigns
The anti-fraud provisions of the Presidential Primary
Matching Payment Account Act, 26 U.S.C. §§ 9031-9042, and the
Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9012, are
five-year felonies and can be used to prosecute aggravated campaign
financing schemes involving presidential campaigns. 26 U.S.C.
§§ 9012 and 9042.
These statutes were enacted after the Supreme Court struck
down the 1974 FECA’s limits on campaign expenditures by federal
candidates as violative of free speech. Buckley v. Valeo, 424 U.S. 1
(1976). The statutes tie eligibility for federal funds to voluntary
adherence to campaign expenditure limits by participating candidates.
Thus, presidential candidates are given a choice between making
unlimited campaign expenditures or accepting public funds for their
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