Wednesday, June 22, 2011

The educated politico’s guide to U.S. v. Danielczyk: Or rather how to pay attention to a Constitutional campaign finance lawsuit

It has come to my attention that in my haste to write interesting articles about Federal Constitutional law, federal procedure, and the jurisdictional effect of federal rulings, that my commentary has become overly legalistic and therefore less accessible to my primary audience (other than lawyers): politicos, educated professionals, academics, and non-lawyer legal professionals. To that end, I need to provide an accessible explanation of the importance of U.S. v. Danielczyk (a case I have been covering for weeks).  The following is that explanation simplified by the extraction of excessive legal terminology, and otherwise provided without citation. Due to the lack of citation, I will more readily comment about the political ramifications of the case.

It all starts with Citizens United

For decades in the area of federal campaign finance law Americans have labored under a system that was previously nonexistent until the latter half of the 20th century. Soon, political power brokers and upstarts discovered that advantage can be gained from enacting federal campaign finance restrictions, and challenging such restrictions in court alleging violations of the Constitution.  Ultimately laws were passed banning outright federal campaign spending by corporations.  Although attempts were made to erode this ban, it was maintained for decades until 2010.

In January of 2010, the Supreme Court issued its ruling in the case of Citizens United.  The Citizens United ruling allowed for unlimited soft money contributions expenditures from corporations, just as individuals were allowed to make. Essentially, the Supreme Court stated that for purposes of political speech a Corporation is afforded the same rights as an individual person under the First Amendment of the Constitution.

Soft money simply means money spent during the campaign that is not coordinated directly with a particular candidate. This is often referred to as issue advocacy. Hard money donations would be money given directly to a candidate for federal office or spent at the direction of a federal candidate's campaign. The theory behind the ethics of allowing unlimited soft money donations is that a soft money donation will inure to the benefit of the donor, but may not be 100% consistent with the narrative the federal candidate, supposedly benefited by the soft-money, is attempting to portray.

What has been happening since Citizens United?

Aside from the expected hemming and hawing in the news media, on the left, and very quietly by the corporate elite, the battle over federal campaign finance restrictions continues to rage in Federal Courts. Since the issuance of the opinion in Citizens United three federal appellate courts (these are the courts just beneath the Supreme Court) have ruled explicitly or implicitly that corporations are still banned from making monetary contributions to federal candidates.  It is important to note that federal appellate courts may not rule on an issue unless it is brought before the court in a case with active participants. It is surprising that in a mere year and a half three federal appellate courts have already ruled on this issue. Nonetheless, in late May 2011 a federal judge in Virginia determined that the ban on direct corporate contributions to federal candidates was unconstitutional, relying on the Citizens United decision.  There was nothing in particular about this case that would lead one to believe that a decision would result in a major controversy over Constitutional law.  This is the decision in Danielczyk issued by Judge Cacheris sitting in the U.S. District Court for the Eastern District of Virginia.

What is the Danielczyk case about?

Boiled down to a simple level some individuals have been accused of criminally violating federal campaign finance laws in arranging for the payment of money to federal candidates without the persons paying the money legally having been allowed to do so, and without disclosing who the people were who actually paid money. No trial has occurred and the defendants remain innocent until proven guilty.

The reaction to Danielczyk

There are essentially two major reactions to this decision: 1. Vocal opposition from the media and left of center/good government advocates; and 2. Silence from right of center advocates and corporate decision-makers.

1. Vocal opposition from the media, although widespread, has been focused heavily on the political consequences of the ruling rather than the legal underpinnings or consequences of the ruling. This has resulted in certain mistakes regarding the description of the ruling and its effects. Vocal opposition from outside the media has run the gamut from knee-jerk reactions from those who see little more than political consequences, to well thought out, reasoned, and potentially persuasive reactions from legal scholars.

2. Silence from right of center advocates is likely predicated on the fact that many establishment politicos do not actually want the hassle and negative publicity of soliciting contributions directly from corporations. Corporate decision makers have actually been quietly advocating to maintain the ban on corporate donations for years. Large corporations do not want the dual problem of appearing to directly buy off members of Congress thereby alienating potential customers, but more importantly their shareholders.  Large corporations also do not want members of Congress functionally extorting the corporations for campaign dollars. If the CEO of a Corporation gives money to a campaign most people may not notice, but if the corporation itself started giving money to only one political party supporters of the opposite political party may decide to boycott for political reasons.

Is there anyone out there advocating for the expansion of freedom of monetary political speech?

Yes.  A handful of generally right of center groups advocate for the position that spending political dollars is an exercise of the first amendment. There is also a major attorney, not directly affiliated with a major political party, in this particular field who appears repeatedly in these campaign finance cases.

So what were my posts all about?

I have written six posts about the Danielczyk decision.  These posts were primarily intended for readers either with a strong background in Federal Constitutional law, federal campaign finance law or federal procedure. In particular I found that the coverage in the mainstream media was missing important points about the legal aspects of the case through mistake or neglect.  Following each link is a brief description of each post:

A federal judge ruled that the ban on direct contributions from corporations to federal candidates is unconstitutional. Most of the criminal case remains intact. The court spent very little time addressing this one particular controversial issue. All of this does not really matter because corporations and politicians do not want to engage in direct corporate donations because of the appearance of corruption.

Why the real fallout of Judge Cacheris’ expansion of the Citizen’s United case will be minimal

The ruling by one judge in this particular court actually has extraordinarily little binding affect. Any Corporation who donates directly to a federal candidate, or any federal candidate who solicits donations from corporations because of the Danielczyk decision is begging to be thrown in jail.  This post is likely the most complicated, but it is also the most important post to understand. I have yet to see the mainstream media indicate they have understood what I conveyed in this post.

Judge Cacheris reconsidering critique of Citizens United?

The judge who issued the Danielczyk decision is so concerned this decision is not thorough enough he decides he wants the parties to submit additional briefs and appear for argument all on a short time frame. It appears the main reason the judge did not consider a major case is because the federal prosecutors did not mention it in their original brief.  Following the line of logic of a major first amendment case, and a related procedural case, it appears more likely than not that Judge Cacheris should declare the federal statute Constitutional.  There are ways to write an opinion that still declares the statute unconstitutional, but the opinion must be detailed and well cited to withstand scrutiny. Motions for reconsideration are rare and even rarer is the occasion when a judge decides to reconsider his own ruling without any party asking him to do so. 

Ban on corporate donations to candidates declared unconstitutional (again)

After reconsidering his previous decision the judge rules the same way. This time he provides a lengthy and detailed analysis.

Ban on direct corporate contributions to candidates upheld in Ninth Circuit

This was largely an acknowledgment of the third appellate case ruling contrary to the decision in Danielczyk.

More procedural hurdles for the appeal of Judge Cacheris’ Citizens United ruling

This post merely identified a major procedural problem facing the US government after they decided to appeal the Danielczyk case.  Essentially the government needed to stop the trial from occurring on the remaining criminal charges, or the appeal would not matter. Before anyone had a chance to concern themselves too much with this problem, Judge Cacheris delayed the trial on the remaining charges so the appeal could go forward.

Where to go for more information:

The best source for additional legal information is at the Election Law Blog, a link to the matters involving Danielczyk can be found here.


  1. I appreciate your posts. They are serious and informative, and I'll keep coming back. I just wanted to suggest a clarification in your description of the decision in Citizens United. The independent spending found to be constitutionally protected in CU should not be referred to as "contributions," but rather "expenditures." The term "contribution" in election law refers only to spending that is given directly to or coordinated with a campaign. CU only considered completely independent advocacy by outside groups. It is clear you understand the distinction, but I think it is important to delineate carefully between contributions and expenditures when laying it out for your readers. It is easy to confuse the types of spending for anybody who is not a campaign lawyer.

  2. Easy fix.
    Thanks for the compliments.
    Perhaps the "contributions" v. "expenditures" distinction might be where the Supreme Court decides that "expenditures" is actual speech and "contributions" is only barely speech deserving only minimal Constitutional protection.