* Emphasis added…
In McCutcheon v. Federal Election Com’n, 134 S. Ct. 1434 (2014), the Court struck down a law restricting aggregate limits on political (campaign) contributions. First, the Court noted that political contributions are protected speech under the First Amendment. McCutcheon, 134 S. Ct. at 1444, 1448. To restrict protected speech, the government must have a compelling interest. Id., at 1444. The government does have a compelling interest in “preventing quid pro quo corruption or its appearance …..” Id., at 1445.
The McCutcheon Court further explained that the government’s interest “in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.” Id., at 1451 (citation omitted). “The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights. In addition, [i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Id., 1451 (citations and internal quotation marks omitted).
Blagojevich’s conviction is based in large part on his attempts to solicit campaign contributions. In this appeal, he argues that the lower court’s instructions to the jury on this issue “omitted the quid pro quo requirement that the government prove that Blagojevich’s requests for campaign contributions were made in return for an ‘explicit promise or undertaking’ to perform or not perform an official act.” Def. Brief, p.50. Instead, Blagojevich’s jury was told to convict on the lower standard that he attempted to obtain a campaign contribution “knowing or believing that it would be given to him in return for the taking, withholding, or other influencing of specific official action.” Def. Brief, at p. 51.
The McCutcheon decision thus supports Blagojevich’s position that, where a criminal prosecution is based upon attempts to solicit campaign contributions, the government must prove a quid pro quo or explicit promise.
* Let’s go to the AP for some context…
Blagojevich’s attorneys filed their appeal one year ago, and the sides held oral arguments before a three-judge panel in Chicago in December. Going more than six months without a decision on an appeal is unusual, though it is impossible to say if the lengthy consideration bodes well for Blagojevich or for prosecutors.
Prosecutors are likely to file a response to Wednesday’s defense filing, though they aren’t required to. A spokesman for the U.S. Attorney’s Office in Chicago, Randall Samborn, declined any comment.
The panel’s hard-hitting questions for a Blagojevich prosecutor during oral arguments raised defense hopes that some convictions could be thrown out. The questions’ focus: Exactly where is the line between legal and illegal political wheeling and dealing? And did Blagojevich cross it?
At one point, Judge Frank Easterbrook noted how exceptional the prosecution of Blagojevich was. He even compared Blagojevich’s bid to land a Cabinet seat to how President Dwight Eisenhower named Earl Warren to the U.S. Supreme Court after Warren offered Eisenhower key political support during the 1952 campaign.
* From that earlier hearing…
With some passion behind his remarks, [former chief judge of the U.S. 7th Circuit Court of Appeals, the conservative Frank Easterbrook] asked if there was “any criminal conviction in U.S. history” other than Blagojevich’s in which a politician was convicted for trying to trade one job for another.
“I’m aware of none,” responded the government’s Debra Bonamici.
Her answer seemed to hang in the air for a bit as courtroom observers took that in.
Easterbrook described how in the run-up to the 1952 presidential election, then-California Gov. Earl Warren offered to use his post to “deliver California” for Eisenhower in return for a seat on the Supreme Court. It was a deal that Eisenhower eventually honored.
“If I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison,” Easterbrook implored. “Can that possibly be right?”
Her eventual answer was nuanced, including explaining the allegations included Blagojevich’s attempt to have a 501c (4) set up for him to head if he appointed Valerie Jarrett to the U.S. Senate.
* At the time, Wordslinger was befuddled by this turn of events…
“If I understand your position, Earl Warren should have gone to prison, Dwight Eisenhower should have gone to prison,” Easterbrook implored. “Can that possibly be right?”–
That’s nonsense. Show me, in any written history, that Warren made such an “offer” and that Eisenhower agreed to “honor” it.
As it was, 77 of the 90-member California delegation voted for Warren at the convention, so Warren hardly “delivered” the state to Ike.
How the U.S. attorney could let that fiction slide just shows how unprepared the office was.
In 1952, Gov. Warren ran as a favorite son, and thought he had the 90-vote California delegation sewn up. In truth, Sen. Nixon spent the train ride from Sacramento to Chicago picking off a handful of Warren delegates for Ike.
Because of this, in part, Ike’s biggest backers, Gov. Dewey and Gen. Clay, recommended him for VP. Nixon was also considered an attractive VP candidate for his youth, war service and for being from the booming West. In addition, he served as a bridge between the right-wing isolationists (for the Hiss case) and the moderate East Coast internationalists (for his support of NATO).
After Ike was elected president, he nominated Warren for solicitor general, with the idea of appointing him to the next open Supreme Court seat, which he did.
But that was to keep Warren from being a primary rival in 1956 and to placate the liberal wing of the GOP, just as Lincoln did with Salmon Chase and the Radical Republicans in 1864.