President Donald J. Trump tweeted that he “[w]ill be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!” Why did the U.S. Department of Justice in 2014 prosecute D’Souza, a prominent political conservative who pleaded guilty to charges that he reimbursed friends for $20,000 in contributions they made to a 2012 New York U.S. Senate candidate? (We blogged about the prosecution in 2014 here.) The answer lies mainly in an amendment to the Bipartisan Campaign Reform Act of 2002, offered by a Republican Senator in response to earlier campaign finance scandals involving Democrats.
Federal campaign finance law has long prohibited so-called “contributions in the name of another.” This can happen when Person A advances funds to Person B, so that Person B can make a contribution to a candidate or political committee. It can also happen when Person A reimburses Person B for a contribution Person B has already made, like D’Souza did. Sometimes, companies trip over this prohibition inadvertently, like when an executive makes a political contribution and submits it for reimbursement, not knowing that the conduct is illegal. In other, notorious cases, bad actors have used so-called “straw donors” to evade contribution limits and conceal the true, illegal source of funds. The Justice Department has described the prohibition as a “core” or “heartland” provision of the federal campaign finance laws.
Congress passed the Bipartisan Campaign Reform Act of 2002—popularly known as “McCain-Feingold”—in a political environment that had been rocked by charges that foreign nationals had made contributions in the name of another during the 1996 elections. On March 30, 2001, when the Senate debated McCain-Feingold, Republican U.S. Senator Kit Bond of Missouri offered Amendment 166, which sought to impose criminal penalties on “contributions in the name of another” involving more than $10,000 in a calendar year. Bond argued: “It is a misdemeanor offense to make a campaign contribution in the name of another … As simply a misdemeanor offense, those intent on corrupting the process do not fear the consequences. Despite the scale of some of the abuses, the offense is rarely prosecuted.”
Senator Bond explicitly targeted his amendment at illegal contributions made to Democratic organizations in 1996, referencing the errant donors by name: “My amendment would make it a felony to knowingly make conduit contributions … Maybe the Johnny Chungs and the Charlie Tries of this world will understand there are consequences for their actions and no longer violate campaign finance laws with impunity.” Bond evidenced little worry that someone like D’Souza might be treated too harshly. “The message from the so-called prosecutions is that there is no threat of jail time for those who break campaign finance laws. If it feels good, do it … The amendment requires, not suggests, that the FEC refer these cases to the Justice Department.”
The Senate passed the Bond amendment by unanimous consent, with virtually no other debate. The only discordant voice was Democratic U.S. Senator Chris Dodd of Connecticut. While allowing the amendment to be adopted, Dodd said, “I disagree with the method of appearing to single out one type of violation for enhanced enforcement or prosecution, namely conduit contributions in the name of another.” Anticipating the arguments of D’Souza’s defenders fifteen years later, Dodd added: “An unintended result of the amendment of Senator Bond may be the appearance and reality of selective prosecution.” The Bond amendment took effect after President George W. Bush signed McCain-Feingold into law on March 27, 2002.
The D’Souza pardon brings to the forefront a core provision of the campaign finance laws that remains a source of significant exposure for companies and politically active individuals. The pardon also shows how debates over campaign finance and public corruption laws can involve reversals of positions and fortunes, hinging on the political conditions of the present moment.