Last Friday’s sentencing of the manager of a failed Congressional race in Virginia’s 11th District suggests that, if there is to be a wave in the criminal prosecution of the campaign finance laws, it may come toward the bottom of the ticket. Smaller campaigns face the same competitive pressures as presidential campaigns and marquee Senate campaigns do. They play by the same rules. And yet these smaller campaigns operate in conditions that make the rules more likely to be disregarded and prosecutions more likely to succeed. In a post-Citizens United world, the VA-11 case is a powerful warning for “down-ballot” candidates, their staff and consultants.
All federal campaigns comply with limits and restrictions that are backed by criminal statutes. They file reports under penalty of false statement. And yet congressional and “down-ballot” campaigns are less likely to have the culture or infrastructure to comply with these laws. They have smaller budgets and less experienced staff. They are less likely to have basic financial controls, best practices, lawyers, or other outside support. Down-ballot campaigns depend more on external sources of accountability, whether from the national congressional campaign committees, their pollsters, or their media consultants.
This makes these smaller campaigns especially vulnerable to lapses in professionalism, and to the extreme results that can follow. This seems to be what happened in VA-11, as an April 2015 article in Campaigns & Elections strongly argued. The campaign manager’s claim at sentencing that he “got caught up in what politics has become” rings a bit hollow. The government alleged that, in the last two months of the race, he set up a super PAC solely to support his candidate, micromanaged it, arranged for it to pay him and his family $138,000, and then lied repeatedly to the Federal Bureau of Investigation when contacted a year later. This is not normal conduct. And yet ill-staffed, ill-supported campaigns are still more prone to it than others.
While smaller campaigns are more vulnerable to professional lapses, they are more vulnerable to prosecution at the same time. This is true also of “rifle-shot” super PACs that form quickly to make independent expenditures in a single race. Because these campaigns and PACs are transient enterprises, especially when the candidate loses, they lack the means to mount a legal defense when the race is over. The campaign is done, the PAC has terminated, the donors are gone, and the operatives must fend for themselves. This makes the operatives involved inviting targets for investigation and prosecution.
The current conversation about campaign finance regulation is almost entirely focused on the presidential campaign. But the Virginia case shows that the real action may be further down the ballot. If there will be more criminal enforcement of the coordination rules, it seems more likely to come in down-ballot races, where the asymmetrical system of limits bestowed by Citizens United is putting even more stress on the competitive and operational pressures with which campaigns already struggle sometimes to contend. We will know in a couple of years whether the Virginia case was an outlier—or the shape of things to come.