Tuesday, February 25, 2014

Political Campaign Donations: Is it the Question or the Answer that Matters?

It has been now a few months since the world learned that political appointees in the administration of Governor Chris Christie (R-NJ) likely ordered the closure of driving lanes on the George Washington Memorial Bridge.  The emails between senior aides indicate that the closures may have been retribution directed towards the Mayor of Fort Lee, New Jersey for failing to endorse Christie in his 2013 re-election campaign.  There has also been claims made that relief aid from Hurricane Sandy was used a means to coax political support.   Similarly, the indictment against former Governor Bob McDonnell (R-VA) and his wife paints a similar picture.  If one accepts the Department of Justice’s version of events, the McDonnell’s were the protagonists who, by virtue of McDonnell’s ascent to the Governorship, communicated that lavish gifts and donations would have payoffs.

Putting aside the merits of these claims, it raises a serious but less discussed issue about the role of money in politics, in a post-­Citizens United v. FCC world.[1]  In Citizens United one of the main arguments from the dissenting Justices was the concern of political candidates being bought and sold under the heavy influence of mega donors and large institutions.[2]  However, the accusations in the “Bridge Gate” scandal raise precisely the opposite question: are politicians using the freedom created in Citizens United to extort money from donors, rather than donors using it to bribe politicians?  This invariably means it is the intent of the politician that matters in political corruption prosecutions.[3]  While the law has already essentially adopted this position, it still does not address which office holders such a standard is most likely to impact.

The 2012 Presidential and Congressional elections cost about $6.2 billion dollars with $3.6 billion spent on Congressional races and $2.6 billion spent on the Presidential race.  With that level of funding, it is intuitively logical to argue that another $10,000 donation will have little practical effect on an individual legislator’s or Governor’s position.  Thus, it becomes the candidate who is placed into a position to exert legal extortion – honor my request for a donation or you won’t get my support when your issue(s) comes up.  Such a statement, though, would represent a felony if stated openly.[7]  Nonetheless, the sentiment that a donation is necessary to stay in good graces with the current or ascending regime exists, and the prospective donor risks losing that goodwill when they fail to make a donation.

However, not all candidates and political offices are made equal.  A junior member of the U.S. House of Representatives by virtue of his seniority may not have the power necessary to sway political outcomes or exact political retribution.  For candidates ascending into powerful roles, either through seniority or office, their power is greater, relative to their peers.  An interested party who wants to maintain goodwill with the current or ascending regime will best be able to accomplish that goal by agreeing to a donation request.  Otherwise, they assume the risk of losing that goodwill vis-à-vis competition with other donors who are prepared to spend substantial sums of money for candidates and PACs.  This is the essence of the accusations leveled against Governor McDonnell and Governor Christie.

The leaders of many major corporations have expressed frustration with the current state of affairs and the nature of campaign fundraising.  Howard Schultz, CEO of Starbucks, exclaimed during the last election cycle that corporations, unions, and wealthy individuals should essentially go on strike.  While many people likely share Schultz’s sentiment, it likely had little practical impact on campaign spending in 2012.  Moreover, such a position may not be politically feasible for company leaders, who are often bipartisan in their donations, when politicians can and do keep “score” of who is on their team.  Again, this dynamic makes the request for a donation more like a demand.

Citizens United will, if not already, affect how political corruption cases get proven or defeated at trial.  The new influx of money into campaigns will, in my estimation, dilute appearance of bribery by donors and shift attention almost entirely towards the intent of politicians.  This may, in some respect, be positive because it could reasonably be argued to create greater independence.  Alternatively, as described, it makes a pay-to-play scheme harder to demonstrate, especially when a political office holder, if they are careful, conceals their intent.  The case against Governor McDonnell and the fallout from the “Bridge Gate” scandal may help to explain how one’s intent is determined for criminal purposes.

Joe Hernandez
Executive Editor, Criminal Law Practitioner

Picture by Milad Mosapoor (Own work) [Public domain], via Wikimedia Commons.

[1] 558 U.S. 310 (2010) (holding, inter alia, that donation limitations from corporations and unions to candidates and political action committees was unconstitutional for purposes of the First Amendment).
[2] Id. at 453 (Stevens, J., Dissenting) (“Congress may “legitimately conclude that the avoidance of the appearance of improper influence is also critical ... if confidence in the system of representative Government is not to be eroded to a disastrous extent.”  Ibid. (internal quotation marks omitted; alteration in original).  A democracy cannot function effectively when its constituent members believe laws are being bought and sold.”).
[3] See McCormick v. United States, 500 U.S. 257 (1991) (holding that a donation alone will not represent a violation of federal law, unless an official act is taken); See also Evans v. United States, 504 U.S. 255 (1992) (holding that an express statement demanding the receipt of something of value is not an element of extortion, but instead rests on state of mind between a public official and another party; stating too that fulfillment of a quid pro quo is not an element of the crime).
[4] See 18 U.S.C. § 1951 (2006).

1 comment: