In the age of extravagant spending by Super PACs and politically active non-profits like the U.S. Chamber of Commerce, why do our
election laws still distinguish between independent political
expenditures by business interests -- which are permissible
under the U.S. Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission -- and direct corporate donations to
candidates, which remain illegal?
As the post-election discussion of the impact of spending by
outside pro-business groups rages on, a new petition for Supreme
Court review argues that if corporations have a First Amendment
right to support candidates indirectly, that same right should
extend to direct contributions to political campaigns.
The petition was filed by Williams Danielczyk, who, as we've reported, is facing criminal prosecution for funneling corporate
funds to Hillary Clinton in her 2006 and 2008 campaigns. Last
year, U.S. District Judge James Cacheris of Alexandria,
Virginia, dismissed that part of the federal indictment against
Danielczyk and co-defendant Eugene Biagi, ruling that the bar on
direct corporate campaign contributions is unconstitutional
under the Supreme Court's reasoning in Citizens United. But in
June, the 4th Circuit Court of Appeals reversed, holding that
the controlling precedent on direct corporate campaign
contributions is not Citizens United but the Supreme Court's
2003 ruling in Federal Election Commission v. Beaumont, in which
the justices said explicitly that corporations do not have a
First Amendment right to contribute directly to political
The 4th Circuit said that in Citizens United, the Supreme
Court explicitly declined to address the constitutionality of
the ban on direct contributions and did not discuss Beaumont's
affirmation of that bar. The court created a distinction between
direct contributions and independent expenditures in Buckley v.
Valero in 1976, the 4th Circuit said. Citizens United did not
erase that line. "Nor did the (Citizens United) opinion indicate
that its 'corporations-are-equal-to-people' logic necessarily
applies in the context of direct contributions," the 4th Circuit
said. "Leaping to this conclusion ignores the well-established
principle that independent expenditures and direct contributions
are subject to different standards of scrutiny and supported by
different government interests."
But Danielczyk's new petition for certiorari, filed by his
Supreme Court counsel at MoloLamken, asserts that after Citizens
United, the supposed division between direct and independent
expenditures by corporations is a distinction without a
difference. The bar on direct corporate giving was intended to
prevent businesses from corrupting the political process, yet
according to Danielczyk, the risk of corruption is no more
severe through direct corporate contributions than it is through
the independent expenditures (or gifts from wealthy individuals)
that the Supreme Court sanctioned in Citizens United. That
ruling, the brief says, "swept away Beaumont's logical
underpinnings and scrapped most of the government interests that
case described." The result, according to Danielczyk, is a
"perverse" and illogical distinction that impinges on corporate
free speech rights.
As the petition notes, plenty of federal judges have cited
Beaumont and upheld the bar on direct contributions. Danielczyk
argues that it's time for the Supreme Court to extend the logic
of Citizens United to direct corporate campaign contributions.
"Absent this Court's review, First Amendment freedoms will
continue to be abridged based on a gravely wounded precedent at
odds with current law," the petition says.
It's a good bet that this petition is going to attract
amicus support from business groups, which can point to the 2012
election results to argue that their prodigious independent
spending didn't result in election wins for their chosen
I emailed the Justice Department for comment on the
Danielczyk petition but didn't hear back.
(Reporting by Alison Frankel)
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