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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.
The facts:
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.
posted by Rich Miller
Thursday, Jul 17, 14 @ 9:28 am
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Much as I dislike Blago, his lawyers make an interesting argument in the appeal based upon the McCutcheon ruling. Can’t fault a desperate man for trying everything possible.
Good memory on the wordslinger post, some very salient points in there. He always brings a lot to the table.
Comment by Formerly Known As... Thursday, Jul 17, 14 @ 9:46 am
The McCutcheon decision was decided by the Supreme Court on April 2, 2014. I wonder who prompted Blago’s attorneys to file their amended appeal asking the panel to take judicial notice of the decision more than three months later.
Comment by Interested Observer Thursday, Jul 17, 14 @ 9:54 am
Still–has any other politician been charged, let alone convicted, for trading one job for another? President Washington spent most of his first term handing out Post Master jobs to his supporters.
Comment by funny guy Thursday, Jul 17, 14 @ 9:56 am
Blago was convicted of much more than just selling a US Senate seat.
Let’s talk about him shaking down a children’s hospital for campaign cash……
Comment by hanging chad Thursday, Jul 17, 14 @ 10:01 am
Hammers in an all nail world.
Comment by The Captain Thursday, Jul 17, 14 @ 10:08 am
Judge Easterbrook’s history lesson is whack and doesn’t belong in a federal courtroom.
For the record, the initial roll call of the states at the 1952 convention at the International Amphitheater ended like this:
Ike: 595
Taft: 500
Warren: 81
Stassen: 20
MacArthur: 10
Before the ballot was recorded, shifts were allowed and another 250 votes went to Eisenhower for the win. But only four of those were from California.
Out of Ike’s final 845 vote total, 13 were from California.
So I don’t think Ike or Warren should have gone to prison.
Interesting sidenote, Taft had pledged if he won to recommend the recently fired MaCarthur as his running mate. Taft died suddenly and unexpectedly in July 1953. If he’d been president, MacArthur would have succeeded him.
Comment by wordslinger Thursday, Jul 17, 14 @ 10:11 am
God stuff from Wordslinger, as usual. Looks like Judge Easterbrook’s history is a little off. But the judge’s point is on target, despite his choosing of a poor example to illustrate it. Political horse trading has gone on forever…it’s only recently become criminal.
Comment by Richard Thursday, Jul 17, 14 @ 10:12 am
Also, this is about money. Blago didn’t just want to trade a job - he wanted cash, in return for appointing Jackson Jr. to the Senate. I’m not aware of Eisenhower or Warren negotiating about fundraisers.
I think it’s a point that politicians exchange “favors” all the time, in return for implicit or explicit appointments - “I’ll endorse you,” or even a non-action, i.e. “I WON’T run or do anything, if you appoint me.” And I think it’s pretty clear you have to screw up in a major way to get indicted over that kind of trading.
But money’s different, in the eyes of the law.
Comment by ZC Thursday, Jul 17, 14 @ 10:12 am
So if we just talked generally about an available job opening, and I say something like: “I value your continued support, and expect that good things will happen for your career,” it’s free speech.
If I say “Give me [this], and you will get [that],” check for wires or taps.
OK got it. That’s easy.
That is too fine a distinction to do much about preventing corruption.
We all should be as “befuddled” as Word.
Comment by walker Thursday, Jul 17, 14 @ 10:13 am
Thanks, Rich, for the correct summary on the Eisenhower/Warren saga. We had that lesson in David Kenney’s class at SIUC in 1973. Too bad Easterbrook and Bonamici are so misinformed or uninformed.
Comment by Motambe Thursday, Jul 17, 14 @ 10:18 am
The Ike/Warren tale has a life of its own, just like Richard I, the presidential kingmaker.
Daley held Illinois for Kennedy when Stevenson made a half-hearted third attempt at the 1960 Dem convention in LA, but that’s it as far as kingmaking. Despite the legend, Kennedy would have won the electoral college without Illinois.
Daley’s role in presidential elections after 1960:
‘64: LBJ was unopposed at convention, crushed Goldwater nationwide.
‘68: Moving right along….
‘72: Got kicked out of the Dem convention.
‘76: Nil.
In the general elections, Illinois went GOP in ‘68, ‘72 and ‘76. So much for the kingmaker.
When the legend becomes fact, print the legend.
Comment by wordslinger Thursday, Jul 17, 14 @ 10:37 am
A job produces money–I don’t see the distinction. Moreover, the right job means more money in the future. Look at the criminal counts that Blago was convicted of—90% related to the Senate seat. If he wins this issue, you can see a drastic reduction in time.
Comment by funny guy Thursday, Jul 17, 14 @ 10:41 am
funny guy,
It’s true, your point is very valid. But, in terms of legal precedent and how courts function, regardless of the arbitrariness of the distinction, I think it’s pretty clear if you look at corruption investigations that “money is different.” There are favors, and then there are favors.
Philosophically I’m on board that it’s all kind of fuzzy. But it’s important to draw at least semi-transparent lines for public officials to know where they practically can and cannot step. If all implicit quid pro quos of any kind constitute illegal behavior, because in -some- conceivable way they benefit the politician … well, that’s a new world. And personally I don’t think I’d be in favor of it, for some of the reasons Rich has been alluding to recently given this teacher qualification “scandal.” I’m not aware of any prosecutions based on horse-trading between two pols over an endorsement or an implicit promise for one to run (or not run) for an office. But Blagojevich had to know when he was asking for cash, that -is- “something of value” that federal courts will interpret as part of a bribe for “an official act” on the part of a public official.
Comment by ZC Thursday, Jul 17, 14 @ 11:22 am
=== When the legend becomes fact, print the legend ===
“The Man Who Shot Liberty Valance” great movie.
It helps much to have the historical background, doesn’t it? Thanks.
Comment by dupage dan Thursday, Jul 17, 14 @ 12:05 pm
ZC raises some great questions.
If cash is the dividing line in a quid pro quo, is there a moral difference between cash paid to a candidate’s campaign fund and cash paid to a candidate?
Comment by Formerly Known As... Thursday, Jul 17, 14 @ 12:08 pm
Wordslinger -
Thank you. Two things keep me here. One is the lack of tolerance for sock puppetry. The other is the knowledge of the commenters.
Comment by Anyone Remember Thursday, Jul 17, 14 @ 12:10 pm
Political horse trading has gone on forever…it’s only recently become criminal.
Perhaps it was always criminal and only recently has anyone bothered to enforce the law.
Comment by Plutocrat03 Thursday, Jul 17, 14 @ 12:35 pm
In the presidential election of 1824, Andrew Jackson won pluralities in both the popular and electoral college votes in a four-way race.
Without a majority winner in the electoral college, the election was decided by a vote of the House of Representatives.
The second-place finisher, JQ Adams, made a deal with Speaker of the House Henry Clay (who had finished fourth): Throw his support to Adams, and Adams would make him secretary of state.
At that time, secretary of state put you on the short list to be the next president. Adams had been secretary of state, as had Jefferson, Madison and Monroe.
Now that’s some horse-trading.
Didn’t work out for Clay. Jackson screamed bloody murder about the deal until the next election and beat Adams handily.
Comment by wordslinger Thursday, Jul 17, 14 @ 12:53 pm
Exactly Wordslinger!
We have to distinguish between what’s illegal and what’s merely sleazy or unethical. Sometimes the right response is not to head to court but just show these guys the door at the next ballot opportunity.
Comment by ZC Thursday, Jul 17, 14 @ 1:07 pm
Formerly Known As,
Or I’ll raise you one; what if the candidate says, “Don’t give the money to me; give it to my district, ie spend a lot on my voters, which will help get me reelected, and then I’ll do you a favor”? That’s still money and it’s still a quid pro quo favor. There’s a lot of grey here no question.
Comment by ZC Thursday, Jul 17, 14 @ 1:11 pm
Maybe Earl Warren et al should have gone to prison for the Warren Commission, undoubtedly the biggest cover up in U.S. history. It manipulated evidence, ignored crucial witnesses, and parroted LBJ and J. Edgar Hoover’s “lone nutter” theory. Its findings were refuted by the House Select Committee on Assassinations and today only the naive believe the Warren Commission was honest.
Comment by Streator Curmudgeon Thursday, Jul 17, 14 @ 1:49 pm
I think Wordslinger is jet showing off now.
(Just kidding, great stuff.)
Comment by What's in a name? Thursday, Jul 17, 14 @ 1:53 pm
just not jet
Comment by What's in a name? Thursday, Jul 17, 14 @ 1:54 pm
ZC - you just had to go and take things up a notch, didn’t you? lol It’s a great question, and one there are clearly no simple answers to.
I suppose it ultimately comes down to a matter of human judgment. Judgment by the politician about where those boundaries are, and judgment by authorities about whether the politician is flouting those boundaries. It seems unlikely the Feds would have pursued Blago if it were only one minor “mistake” in a grey area, but the brazen accumulation of so many transgressions proved too much to ignore. Blago was despicable.
Your posts here just made my day, ZC. Thank you.
Comment by Formerly Known As... Thursday, Jul 17, 14 @ 1:59 pm
Plutocrat03
=Perhaps it was always criminal and only recently has anyone bothered to enforce the law.=
My observation is campaign contributions are starting to be treated like record industry payola in the 1950s.
Comment by Anyone Remember Thursday, Jul 17, 14 @ 3:43 pm