By David Keating and Thomas Wheatley
[F]ederal courts around the country are interpreting two Supreme Court decisions differently…
When Supreme Court Justice Sonia Sotomayor was a Second Circuit appeals court judge, she explained how to resolve the high court rulings. Proof of an express promise isn’t necessary when the payment goes in the pocket of the official, such as cash or a gift.
But if a campaign contribution is made, the First Amendment demands a higher standard of an explicit promise. That’s common sense, but the judge in the Blagojevich trial failed to give the jury such instructions. Using a lower standard for criminal prosecutions for campaign contributions would deter many from donating or running for office. It would enable more politically-motivated criminal prosecutions that interfere with election campaigns.
In 2014, the Supreme Court said that the “First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association. When an individual contributes money to a candidate, he exercises both of those rights.”
In that context, it makes sense to provide additional protections for campaign contributions. Not distinguishing the two gives politically-motivated prosecutors too much leeway, and could subject even small donors to criminal liability.