Litigating: Federal Government Edition

Will someone please visit Public Integrity to determine what alien life forms are drafting its briefs?

I am personally gobsmacked at what I have seem out of the Department of Justice’s Public Integrity section this last two weeks.  For starters, apparently their lawyers could write an entire brief on the law relating to corporate contributions to candidates and NOT CITE LEADING AUTHORITY ON THEIR SIDE.  This litigation, US v. Danielczyk,  involved businessmen who reimbursed employees with corporate funds for making contributions – which is a big no-no.  The corporate contributions aspect of the charges is but a fraction of the total case, so the prosecution would proceed even with the judge’s holding – that corporate contributions are protected under Citizens United – left undisturbed.

For casual readers of campaign finance lore, you should know that the Supreme Court heard and rejected a challenge to the corporate contribution ban brought by an ideological non-profit corporation, in a case called FEC v. Beaumont.  That is, the most sympathetic corporation imaginable asked the Court to find the contribution ban unconstitutional.  The Court said no.

The government’s supplemental brief admits this:

Although the government did not cite Beaumont, and regrets its omission, the defendants have nevertheless previously conceded that the relevant Supreme Court precedents include Beaumont.

What? Really??

Although we at CCP smiled when we read do agree with the Danielczyk ruling, we also understand that the constitutionality of corporate contribution bans was largely put to rest under Beaumont.  It is, however, a major problem when the government fails to cite such important precedent.

Then there’s the Edwards indictment.    First – who knew his given name was “Johnny?”  Moving forward from that fascinating bit of trivia, we learn that the law at issue is something called the “Election Act.”  I have NEVER seen a reference to the Federal Election Campaign Act, aka FECA, be “Election Act.”  Now, I guess a brief writer can designate any short form he or she wants, but this is just confusing and strange.  Yet the possibilities are enchanting.  Can I refer to the Bipartisan Campaign Reform Act – BCRA – and the “Venal Incumbent Protection Sham?”  Or VIPS for short?

The theory of the case is likewise odd.  There’s no question that Edwards received some benefit from the money swooshing around his social set.  But how should that benefit be labeled? Edwards as a candidate is considered by the FEC civil enforcement tradition to receive funds as an agent for his campaign, unless the funds are received in a context that shows reciprocity, customary exchange, etc.  This principal has been used to find that money gifts from family members under the gift tax limit were in fact contributions.  (Dear DOJ – please look this stuff up before briefs are due.)  

Having said that, criminal prosecution of FECA violations requires a showing of knowing and willful conduct in violation of the law.  Edwards might have suspected he was running afoul of some rule, but we can understand if the FECA was not the first statute to leap to mind.  Or the second.  Or eleventh.  It’s REALLY hard to get a conviction of a FECA crime anyway, just because the law is confusing and hard to get jurors all excited about.

Edwards is also an officeholder, and potential a President.  Money gifts for such characters might also be bribes or gratuities – but intent is usually difficult to show and spending directed at some person other than the official also makes that a unclean allegation.

Maybe it was a gift?  Maybe it was income?  On which no taxes were paid.  Then you have a tax case.  People can go to jail for tax evasion, and that has been a prosecutorial path to success when pursuing white collar or corruption cases.  No mention of that in DOJ’s current effort, however.  How come?

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