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Bar Journal 2017

Citizens United or Citizens Undone?

The First Amendment Versus Campaign Finance Regulation 

By Micheal Salem

Money is the mother’s milk of politics.
Jesse “Big Daddy” Unruh1 (1922-1987)
California State Treasurer

Jesse Unruh’s observation is one definition of “political fortune.” Another might be discovering your political opponent was convicted of a serious felony. Although popular sentiment may weigh against a candidate with such a background, a felony conviction is not a disqualification for federal office.2 As to constitutional requirements,3 the qualifications of a person elected to Congress are judged only by the particular chamber to which the candidate was elected.4 Candidates have run for president from prison,5 and a felon was elected to the House of Representatives.6 Of course, some treat the words “felonious politicians” as a pleonasm.7

Jesse “Big Daddy” Unruh was not really talking about “luck.” He was talking about “bucks” and money as the universal nectar and lubricant of politics. In our nation’s history, wherever there are candidates there are donors who want to give them money, whether because they believe in good government or want a favor. The role money plays in our political system can run a gamut, from campaign contributions to candidates, to bundlers who collect money from donors for delivery either to candidates or outside organizations, to independent expenditures by individuals or organizations to promote candidates or issues. 

 The effect of money may constitute outright bribery in exchanges that include payment of money or other consideration for performance of, or agreement to perform, an “official act.” This is the “quid pro quo” model on which the Supreme Court has relied in decisions beginning with Buckley v. Valeo,8 one of the first post-Watergate campaign finance reform cases. No one openly disputes the necessity of criminalizing this kind of activity even if it might arguably constitute speech or expression. More problematic are other contributions or gifts that may not be illegal but have an appearance of “soft” bribery or “influence peddling” to gain access to politicians.9 

With campaign finance reform, the Supreme Court found compelling reasons for congressional prohibitions of transactions like corporate campaign contributions and individual contributions over a certain amount. These bans were narrowly drawn to achieve a governmental interest in preventing actual corruption of federal candidates and officeholders or the appearance of it. Constitutionally permissible prohibitions included bans on money contributed by corporations to political parties that might be used to support particular candidates indirectly. 

A different wind now blows through the Supreme Court. Prohibitions on contributions by corporate donors and some limitations on amounts were lifted by the Supreme Court in two decisions: Citizens United v. Federal Election Com’n10 and McCutcheon v. Federal Election Com’n.11 Both decisions have been criticized by many who think the influence of money on political campaigns has reached a level of emergency. 

In Citizens United, the Supreme Court determined that statutory restrictions prohibiting independent political expenditures by a nonprofit corporation were not consistent with the First Amendment.

In McCutcheon, the Supreme Court held that statutory limits on the amount of money a donor may contribute in aggregate to all political candidates or committees violated the First Amendment. The aggregate limit restricted the political participation of some in order to enhance the relative influence of others. 

Citizens United reversed two Supreme Court decisions. Austin v. Michigan Chamber of Commerce had held that even though statutory restrictions burdened the Michigan Chamber of Commerce’s desire to make independent expenditures in favor of an individual candidate, the restriction was justified by a compelling state interest to prevent corruption, or the appearance of corruption, in political races.12 

Citizens United also reversed a decision that statutory restrictions on independent corporate expenditures, intended by Congress to plug soft-money loopholes, were constitutional.13 

Following Buckley v. Valeo, both Citizens United and McCutcheon established that regulation of the political process must target “quid pro quo corruption” or its appearance: the direct exchange of an official act for money. When the target is other than quid pro quo corruption or its appearance, the government impermissibly injects itself into the debate of who should govern. In McCutcheon, a plurality of the court held that statutory aggregate limits did little, if anything, to combat corruption.

However, whether a principled difference between different corporations applies is unclear when commercial news media outlets – many of which exist in a corporate identity – have carte blanche permission to editorialize support for, or opposition to, an individual candidate or cause. Such editorial support might have value exceeding the campaign limits of hard cash to support or oppose a candidate, creating an effect of influence. 

From a different perspective, why should a supporter PAC be limited financially in challenging a media corporation’s endorsement or disapproval of a candidate or cause? Ownership of a printing press or TV station is not a prerequisite to endorsing political candidates or political causes. Moreover, in an era of internet websites, there seems no principled difference in extending First Amendment protections to a lowly website operator who editorializes in favor of a candidate or issue, while at the same time muzzling a large multinational corporation that also chooses advocacy. The large corporation does not have to purchase a printing press, radio or TV station in order to bring its expressions of opinion within the protection of the First Amendment, nor should it be without First Amendment protections when it purchases radio or television time, or establishes a website. 

It is thus possible to defend what some say is indefensible. The New York Times, Washington Post, USA Today, Washington Times, Fox News and many other media outlets may choose to editorialize by endorsing candidates or causes, or, if they choose, denigrating them. Such coverage on the editorial page or even the news pages can be worth millions. Realistically, restrictions on what free media coverage is provided are impractical and inimical to the First Amendment. Why should not the same freedom be available to nonmedia corporations?

From another viewpoint, you cannot regulate expression that would directly affect the editorial judgment of the media. For example, The New York Times estimated that through March 2016, studies conducted by two different firms that track media spending showed that Donald Trump benefited from $1.898 billion worth of “earned media”14 while spending no more than $10 million. Of the major candidates at that time, Trump had no super PAC, little ground organization or staff or field offices. Contrast this with Jeb Bush, who spent $82 million and essentially got nowhere for the fare. Because of choices made strictly by the media in its coverage of Donald Trump, Jeb Bush’s $82 million during the same time did not even begin to act as a counterweight to Trump’s free media coverage. 

The same disparity applies to noncandidates who want to get into the mix on behalf of a candidate or issue they support or oppose. If they do not have access to “earned media,” their message can be easily swamped unless money offsets the disadvantage.

While an argument can be made there are pragmatic reasons to allow corporations or causes to get their messages out, Citizens United represents consistent equality between corporations and media outlets protected by the First Amendment.

What is the effect of this money on the political system? That may be harder to gauge although many freely speculate. Effect may logically be correlated with how much money is involved, and that is a good place to start, but it does not tell the entire story. The money involved is significant, with estimates for the 2016 presidential campaign having been expected to top $5 billion, more than twice the total of the 2012 election.15 

Can Influence Be Limited by Public Funding? Probably Not.

In 2016, no major party presidential candidate was publicly funded. Public funding does not usually approach the amount of private money available to major party candidates. 

For example, eligibility for public funding in a primary race for president requires agreement to limit national spending to $10 million plus a COLA (post-1974 cost of living adjustment) calculated by the Department of Labor. A candidate can get half of the national spending limit from public funds but cannot spend, in any state, more than $200,000 plus a COLA or an amount based upon a formula of 16 cents per member of the VAP (voting age population). Among other limitations placed on both candidates and national parties, candidates cannot spend more than $50,000 of their own funds. For a general election, these numbers double to $20 million plus COLA, except that candidates are still limited to $50,000 of their own funds.16

For 2016, spending numbers worked out to $48.07 million for the overall primary total and $96.14 million for the general election.17 There are individual spending limits per state. An important factor here can be that in some states, safe for particular candidates, additional money spent would be unnecessary. Both candidates are stuck with the same state limits in both safe and battleground states. For example, in Oklahoma the VAP limit is $2,950,017 while the straight expenditure limit is $2,268,900. Oklahoma’s presidential voting history is skewed to the Republican Party, so spending this amount of money would not give any additional benefit to a Republican candidate in a presidential election, where the candidate with a majority of votes collects all the electoral college electors. On the other hand, this spending limit in Oklahoma for the Democratic Party would probably not significantly help a Democratic presidential candidate. 

A VERY BRIEF HISTORY OF CAMPAIGN FINANCE STATUTES AND LITIGATION18

Concern about the effect of the money and influence of corporations first took hold in the Progressive Era of Theodore Roosevelt,19 who pressed Congress to put limits on money and brakes on campaign activities of corporations. 

The Tillman Act20 was passed in 1907. The act prohibited corporations from making contributions to political campaigns. Because it applies only in very limited instances, there was not much enforcement under it. The act applied only to general, not primary, elections. It provided for fines, but no enforcement mechanism. Despite its limited effect and perhaps because of it, it was upheld as recently as 2003 in Federal Election Com’n v. Beaumont,21 when the court ruled that provisions and regulations barring corporate campaign contributions to nonprofit advocacy corporations were permissible under the First Amendment because “…the ban was and is intended to ‘preven[t] corruption or the appearance of corruption.’”22 

The Federal Corrupt Practices Act (FCPA)23 followed the Tillman Act in 1910. The FCPA set campaign spending limits for political parties in nomination and general elections for the House. It required political parties to make post-election disclosures of contributions to, and expenditures by, individual candidates. Its effect was limited to single-state political parties and election committees. These regulations of party nominations through elections or other methods were struck down by the Supreme Court when it held that the Constitution did not allow Congress to regulate primary elections or political party nominations.24 

The next serious foray by Congress into campaign finance reform occurred approximately 40 years later, when Congress passed the Taft-Hartley Act of 194725 to amend the Wagner Act and ban use of money from union treasuries in political campaigns. 

After these restrictions on contributions and expenditures by corporations and unions, the modern era of campaign finance reform emerged in the Watergate era with passage of the Federal Election Campaign Act of 197126 (FECA) and the 1971 Revenue Act. FECA established additional disclosure requirements for contributions in federal elections. The Revenue Act began to structure public financing of presidential elections and limited expenditures on presidential nominees who accepted public funds. The check-off box on tax returns for $1 to be applied to the presidential election campaign was part of the law, but the check-off box did not appear until 1973.27 

When the enforcement mechanism of the 1971 act proved unworkable, the act was amended in 1974 to create the Federal Election Commission.28 It limited campaign contributions and expenditures. Most significantly, the 1974 amendments al-lowed corporations to establish segregated funds (PACs) to receive and hold funds and use them to make donations. The 1974 amendments also set strict limits on contributions to candidates from individuals and PACs. The amendments completed the public option for candidate financing of elections. 

FECA was amended again in 1976 in response to the Supreme Court’s decision in Buckley v. Valeo where certain portions of the law were declared unconstitutional. Contribution limits to individual candidates were upheld because contribution limits prevented influence or quid pro quo. 

In Buckley, the court held that expenditure limits on candidates and their committees were unconstitutional because they limited the amount of speech that was available to candidates who had money to spend. But, the court held that expenditure limits on publicly funded candidates were constitutional because candidates could opt to decline the public financing and avoid the expenditure limits it set. Moreover, campaign finance statutes or rules could not constitutionally limit candidates’ spending their own money. 

The most recent campaign finance reform legislation was the Bipartisan Campaign Reform Act of 2002 (BCRA).29 The BCRA was intended to control the increased use of soft money by political parties. Soft money is money raised by political parties that they can put to any use. 

The BCRA prohibited national political party committees from raising or spending money not subject to federal limits, even when the purpose was state or local races or issue advocacy. It restricted broadcast of “issue advocacy ads” that named a federal candidate within 30 days of a primary or caucus or 60 days before a general election. It banned such ads paid for by a corporation or other organization, whether or not it was a nonprofit. That specific provision prompted the Citizens United litigation, al-though the Supreme Court later expanded the scope of the case from time restrictions to the general question of First Amendment limitations on corporate citizens. 

THE CITIZENS UNITED DECISION
Citizens United, a nonprofit advocacy organization, had an unfavorable opinion about Hillary Clinton. With donations received, it produced an anti-Clinton film called Hillary the Movie (the movie). Would unfavorable publicity about Clinton curry favor with a potential Clinton rival? Possibly yes. In 2008, that arguably would have included Barack Obama and scores of Republican candidates. 

Citizens United brought a declaratory action because it wanted to make Hillary the Movie available for video-on-demand within the 30 days prior to the 2008 primary elections. Citizens United asked whether it would violate 2 U.S.C. §441(b) which prohibited corporate funded independent expenditures and subjected it to civil and criminal penalties.30 It would also trigger a prohibition of electioneering-type advertisements within 30 days of a primary and 60 days of a general election under the statute and FEC regulations.31 

Citizens United’s request was denied by a three-judge district court which upheld the statutes and regulations, relying upon McConnell v. Federal Election Comm’n32 and Austin v. Michigan Chamber of Commerce.33 The Supreme Court granted certiorari, and after argument ordered re-argument and asked the parties to brief whether McConnell and Austin should be overruled. 

Justice Kennedy, writing for a fractured five-member majority, concluded the First Amendment prohibits the government from suppressing political speech on the basis of the speaker’s corporate identity (overruling Austin) and a federal statute which barred independent corporate expenditures for electioneering communications violated the First Amendment (overruling McConnell). The decision struck down the statutes on their face. The court did uphold public disclosure provisions of BCRA for sponsors of electioneering films. 

DEFENDING THE INDEFENSIBLE – WITH THE FIRST AMENDMENT!

Some critics of Citizens United characterized the decision as “indefensible.”34 The criticism primarily relies upon factual allegations about significant amounts of money spent for candidates and the fanciful claim that once elected, the candidate could not ignore such largess. For example, Newt Gingrich’s 2012 campaign was kept alive from $20 million in donations to a Gingrich super PAC by Sheldon Adelson of Las Vegas.35 

Adelson reportedly contemplated donations of up to $25 million to a Donald Trump super PAC.36 

The question is not so much what Adelson contributed to a super PAC supporting Gingrich but whether Gingrich would feel the same appreciation if the Washington Times editorialized repeatedly in Gingrich’s favor at a cost that might eventually reach a value of $20 million? While Gingrich might reap the same or similar benefit, there is little chance the Washington Times would be brought before the FEC on a charge of “corruption” for its editorial choices. 

In the most recent presidential election cycle, Hillary Clinton was clearly the beneficiary of regular editorial endorsements of The New York Times, but more importantly, she benefitted from editorial and news judgments that attacked Donald Trump. The New York Times characterized Donald Trump’s “variations” from the truth as “lies” in both editorials and news reporting.37 

No one could bring a successful FEC proceeding against news outlets that contributed to Donald Trump “earned coverage.” Yet from a First Amendment viewpoint, why would an FEC proceeding be sustained against an individual or nonmedia corporation that independently spent money to help or hurt Trump?

ANOTHER LOOK AT THE CITIZENS UNITED HOLDING – FINANCIAL
Campaign financing admittedly looks like a mess, but democracy is messy. A system where candidates rely on the assistance of billionaires and millionaires suggests that political and financial fortunes of those candidates depend upon how warmly they embrace the interests of their patrons.

PACs and super PACs logically look for politicians who will protect the interests of contributors. Does this skew the results of elections? No, unless voting is rigged and/or cheating is rampant, because election outcomes are the cumulative result of individual votes. Although someone spends a great deal of money to persuade the electorate to vote for a candidate or cause, votes must still be cast individually and in secret. 

Following the interests of the PAC or candidate with the most money is not necessarily evidence that the electorate is being persuaded to one view or another. For example, the 2016 election season resulted in record fundraising for Clinton despite her loss. In September alone, Clinton’s campaign raised more than $154 million. The PAC Hillary for America raised $84 million, and the Democratic National Committee raised another $70 million through the Hillary Victory Fund and the Hillary Action Fund. The average donation was $56. More than 900,000 people donated to the campaign.38 Actually, this looks good for participatory democracy. 

Clinton did well during the entire election cycle. In July 2016, FEC filings indicated that $1.48 billion had been raised by all presidential candidates and groups supporting them, an astounding amount of money. Of this, $275 million was attributed to Clinton’s campaign and only $91 million to Trump’s campaign. Trump’s war chest supposedly had 55 percent of its money from his own funds, making him the largest single donor to himself individually and to his super PAC.39 

Still, the FEC reported that in the 2016 presidential campaign cycle, a total of $1.461 billion was donated to candidates. This does not include PAC spending. Democrats benefitted from $799.5 million and Republicans received $639.1 million. Clinton had $563.8 million and Trump $333.1 million.40 What are the sizes of the donations? Here is the data posted on the FEC website as of March 5, 2017: 

Size of Contributions
$200 and Under $812,434,910
$200.01 - $499 $106,101,977
$500 - $999 $79,521,630
$1,000 - $1999 $107,240,039

$2,000 and Over $310,434,245

In looking over these numbers, $812.4 million is accounted for by small donations less than $200, while $310.4 million is in the category greater than $2,000. Large donations are involved, but a lot of the money coming to candidates is in small donations, which can only be healthy.

ANOTHER LOOK AT THE CITIZENS UNITED HOLDING – LEGAL

A fundamental legal question in Citizens United is whether individuals and corporations have the same First Amendment rights as media corporations or “the press.”

An excellent analysis of that question appears in an article in the Yale Law Journal by Michael McConnell, former Judge of the 10th Circuit. Judge McConnell sees the result in Citizens United as a proper application of precedents even as he acknowledges the sorry state of campaign financing. He argues there must be more creative methods to address the issue than defeating the “money as speech” argument.41 

Judge McConnell thinks Citizens United is best viewed as a press case where corporations not normally engaged in press activities nevertheless have the same protections as the press when they choose to speak out. 

Under Supreme Court precedents, the rule should be that nonmedia corporations enjoy the same First Amendment rights as media corporations. It should not matter whether the person or corporation who makes political statements owns a printing press, radio or television station, or other large media system. For example, a “Letter from the Editor” in the Sunday Oklahoman indicated that thereafter its print edition would be printed in Tulsa on another paper’s press. So it appears that Oklahoma’s largest metropolitan newspaper may no longer even own a printing press.42 Does this mean the Oklahoman is no longer a media company? Clearly, no. 

There is little logic in statutes or regulations that muzzle other corporations when corporate media giants have significant rights under the First Amendment. Constitutionally, there is little to distinguish them. The Supreme Court has never made a distinction that gives media or the press greater rights than individual citizens.

For example, the court has consistently rejected a “reporters’ privilege” that would allow reporters a claim of confidentiality for information they gather.43 Likewise, the media has no privilege in gathering news to access closed locations such as a jail.44 In Houchins, Justice White relies upon other cases, including Branzburg, which support the general theory that the press enjoys no special privilege beyond that of the general public.45 

Judge McConnell suggests that Citizens United bears a significant resemblance to Mills v. Alabama.46 In Mills, the Alabama Corrupt Practices Act “makes it a crime ‘to do any electioneering or to solicit any votes * * * in support of or in opposition to any proposition that is being voted on on the day on which the election affecting such candidates or propositions is being held.’” The Birmingham Post-Herald, a daily newspaper, carried an editorial written by the defendant, an editor, which urged “the people to adopt the mayor-council form of government.”47 Mills was arrested for violating the statute by his publication. The charges were dismissed by the district court and reversed by the Alabama Supreme Court as a proper and not unreasonable exercise of police power. 

Speaking for the Supreme Court, Justice Black reversed. Black found it fatal that the statute allowed all kinds of speech on any subject until the day of the election but did not allow any responses on Election Day. “We hold that no test of reasonableness can save a state law from invalidation as a violation of the First Amendment when that law makes it a crime for a newspaper editor to do no more than urge people to vote one way or another in a publicly held election.”48 Mills involved a blackout period of only one day and was declared unconstitutional. Citizens United involved blackout periods of 30 or 60 days, which curtails even more expression. 

Many organizations that do not have the appearance of media exercise First Amendment rights. Prominent among them might be the American Bar Association or state or local bar associations, which speak on public is-sues. The ABA structure may be similar to public media, it collects money from individuals and can certainly be characterized as an advocacy group, but the ABA is not the press. Yet there is little dispute it would be allowed the same protections as the press in its editorial pronouncements.

There is no confusion when large companies and industries own or purchase their own media outlets, or constitute a media conglomerate. Does General Electric’s ownership of NBC Television, Telemundo and numerous TV stations give it alone editorial power over political commentary that is forbidden to other corporations? Stated differently, does a media conglomerate in its constituent parts have the right to speak, but its central governance does not?

At a time when courts are extending First Amendment protections to individuals and corporations utilizing the internet, there is no principled reason to deny those same First Amendment protections to corporations. At one time the Supreme Court took a graduated approach toward new media, trying to determine whether First Amendment protections would apply and then deciding what form they take. The internet seems to have broken this procedure because when Congress attempted to impose standards against indecency against the internet, the Supreme Court applied a First Amendment analysis without measuring the media and found several problems with the statute including vagueness, overbreadth and failure to satisfy any “time, place, or manner” restrictions. The internet presented none of the justifications for restrictions imposed, for example, in broadcast settings.49 

CONCLUSION

In a constitutional sense, Citizens United fits comfortably within existing precedents of the Supreme Court involving “freedom of the press.” We cannot deny that same freedom of expression to corporate entities when media entities also use corporate forms in an indistinguishable manner. A media corporation possesses no more First Amendment rights than other corporate citizens, and logically other corporations should possess no fewer First Amendment rights than their media corporation counterparts. A conglomerate corporation with multiple businesses which includes a media outlet may, if it chooses to do so, provide unlimited support for a candidate or a cause in its editorial judgment without accounting to the FEC. 

We must also regard that money is not always primary in promoting the candidacy of persons or issues. As the most recent election cycle demonstrated, a lack of money, or even organization, did not prevent the election of Donald Trump. Hillary Clinton raised $563.8 million to $333.1 million for Donald Trump. Bernie Sanders made a substantial impact with $228.2 million.50 This suggests that money may not be as powerful as an “idea whose time has come” whether or not we like the message.51 

Even so, the suggestion of the incorruptibility of billionaires because of their money is a cautionary tale. Money still has its effect even among billionaires. Nelson Bunker Hunt, son of the wealthy oil wildcatter H.L. Hunter, was said to have remarked, “Making money is the way you keep score in life, in business.”52 In such circumstances, money never loses its significance to the poor or wealthy alike.53

It is not within the scope of this article to propose solutions to campaign finance abuse. The purpose instead is to measure the campaign finance rules pre-Citizens United against the First Amendment. Even so, if campaign finance reform is to be successful, and there is still much to experiment with, perhaps it should begin with disclosure laws that allow voters to judge the merit of campaign rhetoric by its sources. 

Disclosure should be coupled with procedures that encourage more speech by more parties as suggested by Justice Brandeis:

If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.54

Even with Brandeis’ “more speech” remedy, there are no guarantees of a fair outcome or a level playing field. There is only a process which Brandeis suggests offers the best opportunity for education. A future which includes massive spending by super PACs and corporations and a fear this will overwhelm the voices of those with less may not be that bleak. Technology including social media has increased the financial efficiency of campaign spending by multiplying the number of outlets and availability so that even minority views can gain broad exposure. Our trust in the First Amendment will be best realized in such a multi-sourced information universe. 

1. Lou Cannon, Ronnie & Jesse: A Political Odyssey – A Candid Bio-graphy Of The Two Rival Political Champions, Ronald Reagan And Jesse Unruh 99 (1969). See also, Mark A. Uhlig, “Jesse Unruh, A California Political Power, Dies,” NY Times, Aug. 6, 1987, found at: www.nytimes.com/1987/08/06/obituaries/jesse-unruh-a-california-political-power dies.html (last visited March 5, 2017).

2. See Jack Marshall, Cong. Research Serv., RL31532, Congressional Candidacy, Incarceration, and the Constitution’s Inhabitancy Qualification (2002) (“Once a person meets the three constitutional qualifications of age, citizenship and inhabitancy in the State when elected, that person, if duly elected, is constitutionally ‘qualified’ to serve in Congress, even if a convicted felon.”). See: research.policyarchive.org/1486.pdf. (Hereinafter Congressional Candidacy)(last visited March 5, 2017). 

3. The only requirements for federal office are specified by the Constitution. States may not impose additional qualifications or disabilities on congresspersons. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). States do have the right to control who is entitled to vote. Ironically, a person convicted of a felony may be eligible to run for federal office but be forbidden by state electoral law from voting for him or herself, or anybody for that matter. Congressional Candidacy, p. 2, n. 6.

4. U.S. Const. art. I, §5, cl. 1.

5. Labor leader, Eugene V. Debs, ran for president as the Socialist Party’s candidate five different times from 1900 to 1920. The last campaign was while Debs was in jail after conviction for opposition to World War I. Eric Foner and John A. Garraty, Eugene V. Debs, See: www.history.com/topics/eugene v debs (last visited March 5, 2017). James A. Trificant Jr., a former member of Congress, was expelled from the House of Representatives after convictions of bribery, filing false returns and other criminal offenses. He served seven years and ran for office from prison as an Independent but lost with only 16 percent of the vote. See en.wikipedia.org/wiki/James_Traficant#Post prison_life (2010 run for Congress) (last visited March 5, 2017).

6. Representative Matthew Lyon was convicted of violating the Sedition Act and imprisoned in his home state of Vermont, yet re-elected to Congress in 1789. A Federalist offered a resolution of expulsion which failed for a two-third’s vote. Congressional Candidacy, p. 3-4.

7. Mark Twain reportedly said, “There is no distinctly native American criminal class except Congress”; quoted by Emily Heil, “Mark Twain on Congress: idiots, criminals, dumber than fleas,” Washington Post (April 18, 2012). www.washingtonpost.com/blogs/in-the-loop/post/mark-twain-on-congress-idiots-criminals-dumber-than-fleas/ 2012/04/18/gIQA3J4nQT_blog.html (last visited March 5, 2017).

8. 424 U.S. 1 (1976).

9. Influence is a by-product of money and is not always illegal. An example is former Virginia Gov. Bob McDonnell and his wife, who were convicted in 2014 on federal bribery and Hobbs Act extortion charges for taking more than $175,000 in loans and gifts, including a Rolex watch and vacations, from a Richmond businessman, Jonnie Williams Sr. Williams was promoting a dietary supplement and sought out McDonnell’s help in gaining access to state officials to attract persons who might be interested in the product. In return McDonnell set up meetings, hosted an event at the governor’s mansion, or called other officials on Williams’ behalf.

The Supreme Court unanimously reversed the convictions of both McDonnell and his wife based upon the district court’s broad definition of an “official act.” An element of bribery is money given in exchange for an “official act.” Chief Justice Roberts said such an “official act” must be a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official or organizing an event, without more, does not satisfy the definition of “official act.” McDonnell v. U.S., 136 S.Ct. 2355, 2370-71 (2016).

The Justice Department finally decided to dismiss charges against McDonnell and his wife. Matt Zapotosky, Rachel Weiner and Rosalind S. Helderman, “Prosecutors will drop cases against former Va. governor Robert McDonnell, wife” (Sept. 8, 2016). See: www.washingtonpost.com/local/public safety/prosecutors-will-drop-case-against-former-va gov-rober-mcdonnell/2016/09/08/a19dc50a 6878 11e6 ba32 5a4bf5aad4fa_story.html (last visited March 5, 2017).

10. 558 U.S. 310 (2010).

11. 134 S.Ct. 1434 (2014)

12. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 668-69 (1990) (“By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections”).

13. McConnell v. Federal Election Com’n, 540 U.S. 93, 146 (2003) (“The evidence in the record shows that candidates and donors alike have in fact exploited the soft money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft money donations to national and state committees ‘solely in order to assist federal campaigns,’ including the officeholder’s own”).

14. “Earned media” is identified as “news and commentary about his campaign on television, in newspapers and magazines, and on social media.” Nicholas Confessore and Karen Yourish, “$2 Billion Worth of Free Media for Donald Trump,” The Upshot (March 15, 2016). See: www.nytimes.com/2016/03/16/upshot/measuring-donald trumps- mammoth-advantage-in-free-media.html?_r=0 (last visited March 5, 2017).

15. Amie Parnes and Kevin Cirilli, “The $5 billion presidential campaign?” The Hill (Jan. 21, 2015, 4:54 p.m.). See: thehill.com/blogs/ballot box/presidential races/230318-the-5-billion-campaign (last visited March 5, 2017).

16. This information is found at the Federal Election Committee website. See www.fec.gov/pages/brochures/pubfund.shtml (Last visited March 5, 2017).

17. Again, these numbers come from the Federal Election Committee. See www.fec.gov/pages/brochures/pubfund_limits_2016.shtml (Last visited March 5, 2017).

18. Part of this history is on the website of the Federal Election Commission. (www.fec.gov/info/appfour.htm) (FEC App. 4) (last visited March 5, 2017).

19. In its history, the Federal Election Commission contends the first federal election law was passed in 1867. The law forbade federal officers from soliciting contributions from Navy yard workers. ibid.

20. Tillman Act of 1907, ch. 420, 34 Stat. 864 (now codified as amended at 2 U.S.C. §441b).

21. 539 U.S. 146 (2003).

22. Federal Election Com’n v. Beaumont, 539 U.S. at 154.

23. Federal Corrupt Practices Act, 2 U.S.C. §§241 - 248, Pub.L. 61-274, 36 Stat. 822, enacted June 25, 1910.

24. Newberry v. United States, 256 U.S. 232 (1921).

25. Labor Management Relations Act of 1947, 29 U.S.C. §§401  531 (the Taft-Hartley Act), (80 H.R. 3020, Pub.L. 80-101, 61 Stat. 136, enacted June 23, 1947). It most likely grew out of congressional concern upon the end of the war, that the minority of workers who were unionized and who had agreed not to strike during the war might turn to political organization.

26. Federal Election Campaign Act of 1971, 52 U.S.C. §30101 et seq., Pub.L. 92-225, 86 Stat. 3, enacted February 7, 1972). The act was signed into law by Richard Nixon.

27. FEC App.4.

28. Prior to 1974, compliance was monitored by the clerk of the House, the secretary of the Senate, and the comptroller general of the United States General Accounting Office. The Justice Department was responsible for prosecuting violations of the law. After 7,000 referrals for investigations, only 100 were forwarded to the Justice Department and few were litigated. FEC App. 4.

29. 2 USC 431, Public Law 107-155 (“BCRA” or “McCain-Feingold”).

30. Citizens United v. Federal Election Cm’n, 558 U.S. 310, 321 (2010).

31. 2 U.S.C. §434(f)(3)(A).

32. 540 U.S. 93 (2003).

33. 494 U.S. 652 (1990).

34. See Steven Rosenfeld, “6 Pathetic Right Wing Attempts to Defend the Indefensible Citizens United (Debunked),” Alternet (Feb. 23, 2012), www.alternet.org/story/154274/6_pathetic_right wing_attempts_to_defend_the_indefensible_citizens_united_(debunked) (last visited March 5, 2017). This argument has been reprinted numerous times. Fred Wertheimer, “Five Years Later, Citizens United Wreaks Havoc on Our Democracy,” ACSblog (Jan. 21 2015), www.acslaw.org/acsblog/five-years-later-citizens-united-wreaks-havoc-on our-democracy? page=1 (last visited March 5, 2017) (“The Citizens United decision, written for the majority by Justice Anthony Kennedy, is based on a series of indefensible, if not astonishing, premises”).

35. Abby Phillip and Dave Levinthal, “Adelson tally to Gingrich: $20M,” Politico, www.politico.com/story/2012/04/gingrich-camp mired-in-debt 075418 (last visited March 5, 2017).

36. Peter Stone, “Sheldon Adelson to give $25m boost to Trump Super Pac,” The Guardian (Friday, Sept. 23, 2016, 13:56 EDT, Last modified on Sept. 29, 2016, 17.31 EDT): www.theguardian.com/us‑news/ 2016/sep/23/sheldon‑adelson‑trump‑super‑pac‑donation‑25‑million

37. Susan Lehman, “Times Editor Dean Baquet on Calling Out Donald Trump’s Lies,” Times Insider (Sept. 23, 2016), www.nytimes.com/2016/09/23/insider/times-editor-dean-baquet-on-calling-out-donald-trumps-lies.html (last visited March 5, 2017); Liz Spayd, “When to Call a Lie a Lie,” The Public Editor (Sept. 20, 2016), www.nytimes.com-2016-09-20-public-editor-trump-birther-lie-liz-spayd-public editor.html (last visited March 5, 2017).

38. Rebecca Morin, “Clinton campaign raises more than $154 million in September,” Politico (Oct. 1, 2016, 4:15 p.m. EDT) www.politico.com-story-2016/10-hillary-clinton-september-fundraising-229004 (last visited March 5, 2017).

39. Michael Beckel, “Buying of the Presidency: Clinton outraising Trump by 3-1 margin in dash for cash,” Center for Public Integrity (July 21, 2016, 2:15 a.m. Updated: July 21, 2016, 11:03 a.m.): www.public
integrity.org/2016/07/21/19990/clinton-outraising-trump-3-1-
margin-dash-cash
(last visited Oct. 4, 2016).

40. FEC, 2016 Presidential Campaign Finance, www.fec.gov/
disclosurep/pnational.do
(last visited March 5, 2017) (FEC 2016 Presidential)

41. Michael McConnell, “Reconsidering Citizens United as a Press Clause Case,” 123 Yale L.J. 266-529 (November 2013). See www.
yalelawjournal.org/essay/reconsidering-citizens-united-as-a-press clause-case
(last visited March 5, 2017).

42. Kelly Dyer Fry, “We Will Always Be Your Eyes and Ears,” Sunday Oklahoman, Oct. 2, 2016, at 2A.

43. Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972).

44. Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (“the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally”) (plurality opinion).

45. Pell v. Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Washington Post, Co., 417 U.S., 843, 850 (1974).

46. 384 U.S. 214 (1966).

47. Mills, 384 U.S. at 216.

48. Mills, 384 U.S. at 220.

49. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).

50. FEC 2016 Presidential. 

51. This is misattributed to Victor Hugo, but has a closer match to Gustave Aimard’s novel, Les Francs Tireurs (1861):
… there is something more powerful than the brute force of bayonets: it is the idea whose time has come and hour struck.” 
A reference in Wikiquotes attributes as follows: Gustave Aimard; (tr. unknown) (1861). The Freebooters. London: Ward and Lock. pp. 57. See en.wikiquote.org/wiki/Victor_Hugo#cite_note 1 (Last visited March 5, 2017).

52. See  www.dallasnews.com/obituaries/obituaries/2014/10/21/nelson-bunker-hunt-second-son-of-legendary-wildcatter-h.l.-hunt-dies (last visited March 5, 2017).

53. Hunt was a billionaire when he and his two brothers, Lamar and William, unsuccessfully attempted to corner the silver market in 1979-80 resulting in personal bankruptcies. Both Nelson and William were fined and banned from commodities trading for their efforts. They also were required to pay substantial back taxes. See www.nytimes.com/1989/12/21/business/2-hunts-fined-and-banned-from-trades.html (last visited March 5, 2017). 

54. Whitney v. California, 274 U.S. 357, 377 (1927) (concurring).

About The Author

Micheal Salem is a solo practitioner from Norman. His practice areas are federal constitutional law and civil rights, including First Amendment law. He received a Bachelor of Science in electrical engineering (1971), a master’s in public administration (1975) and a J.D. (1975) all from OU. He is the recipient of the Oklahoma Courageous Advocacy Award (1984), Golden Quill Award (2010), Fern Holland Courageous Lawyer Award (2013) and Joe Stamper Distinguished Service Award (2016) from the Oklahoma Bar Association. 

Originally published in the Oklahoma Bar Journal OBJ 88 pg 949 (May 20, 2017)

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