The U.S. Justice Department is “hampered” from uncovering corruption and enforcing campaign finance laws in the aftermath of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, a top prosecutor testified Tuesday on Capitol Hill.
Current laws don’t always give prosecutors the warning signals needed to investigate when individuals or certain nonprofits might be violating campaign finance laws, said Mythili Raman, the acting assistant attorney general in DOJ criminal division.
The result: it is easier to get away with illegally buying influence over elections and concealing the conduct, said Raman, who took over the leadership of the division after the departure of Lanny Breuer last month.
The primary challenge, Raman said, is determining illegal coordination between Super PACs and campaigns. The election commission, she said in prepared remarks, "has been unable to reach agreement or declined to take administrative action" in certain instances. Raman offered several examples of coordination, including this: a candidate’s mother, running a Super PAC, expressly supporting the candidacy.
"We believe it will be exceedingly difficult for prosecutors to prove beyond a reasonable doubt whether and when super PACs and campaigns willfully engage in illegal coordination," Raman said at the Senate Subcommittee on Crime and Terrorism.
The subcommittee chairman, Senator Sheldon Whitehouse (D-R.I.), a former U.S. attorney in that state, said Tuesday that Super PACs were getting "creative" with tax filings and pointed to several areas of "mischief."
Those included, according to Whitehouse: Discrepancies between reporting to the IRS and FEC, discrepancies between reported and actual activity and characterizing political television ads as educational activities or legislative activities.
Whitehouse criticized the Justice Department for appearing complicit in the "mockery that is made of these tax laws," because it maintains a policy of deference to the Internal Revenue Service. He said DOJ does not investigate or prosecute false statements in campaign finance tax reporting without a case brought to it by the IRS, which has said it is not staffed to investigate the filings and chasing nonprofits is not the agency’s primary purpose.
"We have DOJ deferring for enforcement to an effectively toothless organization with the predictable result that zero cases appear to have been brought," Whitehouse said.
Senator Ted Cruz (R-Texas) questioned why the Justice Department is supporting legislation that forces disclosure of political speech, likening the disclosure of names of the nonprofits to disclosing the names of members of the NAACP. DOJ, Raman responded, simply doesn’t have the tools it used to have to see if Super PACs are illegally coordinating with campaigns.
"We want clear and common-sense understanding of what coordination is so that we can do our job as robustly as we have been able to … and we need transparency in the way our campaign finance system works," Raman said.