The Times Has Lost All Perspective

The New York Times, among others, reacted with wild-eyed dismay to a court’s recent decision to strike down the federal ban on direct contributions from corporations to candidates. Obviously, reading legal opinions is hard work – especially on a Saturday. But The Gray Lady’s sky-is-falling analysis is nonsense, and would have benefited from some reflection on what the court actually did.

Bemoaning the “spree of big-money political campaigning – and the corruption that comes with it,” the Times noted that:

Judge [James] Cacheris’s ruling struck down part of an indictment accusing two businessmen of illegally reimbursing employees for their donations to Hillary Clinton’s campaigns for president and the Senate. They are charged with paying more than $180,000 to 43 fake donors in an effort to evade donation limits.

Pretty terrible, right? Almost $200,000 of illegal donations, funneled from corporate executives through their employees! Surely that sort of behavior raises corruption concerns and should be illegal?

Well… of course.  The Times admits that “most of the indictment still stands.” In fact, the first 41 pages of the 52-page decision are dedicated to approving the indictment. Six of the seven counts passed muster, including those addressing the shocking behavior described by the Times. If convicted, these guys are going to prison.

Only one of seven counts was disapproved, namely the one dealing with direct corporate contributions to candidates. The court noted that Citizens United allowed corporations, unions, and other associations to speak independently about politics on the same grounds as individuals. Judge Cacheris consequently came to the eminently-reasonable conclusion that those entities should also be able to contribute directly to candidates, just like – and with the same restrictions as – individuals. Importantly, that means that corporate and union contributions are subject to the same monetary limits as individual contributions. Contrary to the Times’s hyperbole, that $180,000 contribution is still illegal, a fact they might have mentioned.

The Times is correct that this opinion is contrary to the Supreme Court’s 2003 ruling in Federal Election Commission v. Beaumont. But that case was decided prior to Citizens United, and Judge Cacheris is correct in stating that its reasoning is now highly suspect. Furthermore, the Supreme Court has not had a chance to revisit that ruling in light of its more-recent decisions – and, as the Times could have learned from talking to any lawyer, courts are required to rule on the cases before them, and are not permitted to go about randomly overruling prior decisions. Simply put, this case presented a question the Supreme Court has not revisited in light of its reasoning in Citizens United. 

Judge Cacheris made the right decision here. This was a criminal case, and there is a real question as to the constitutionality of one law under which these men were prosecuted. But the rest of the indictment, including the portions the Times used for dramatic effect, are valid. Let’s send people to prison for violating constitutional laws, not unconstitutional ones.

The Center for Competitive Politics is now the Institute for Free Speech.