Super PAC Contributions Can Be Considered Bribes: Judge

A federal judge confirms what you already knew.
A federal judge dismissed four charges in the corruption case involving Sen. Robert Menendez (D-N.J.) and his donor Salomon Melgen, but let stand bribery charges related to the senator's solicitation of super PAC cash.
A federal judge dismissed four charges in the corruption case involving Sen. Robert Menendez (D-N.J.) and his donor Salomon Melgen, but let stand bribery charges related to the senator's solicitation of super PAC cash.
Kena Betancur via Getty Images

WASHINGTON -- A district court judge on Monday dismissed four corruption charges against Sen. Robert Menendez (D-N.J.) and his donor Salomon Melgen, but denied motions to toss out other charges including, notably, the senator’s solicitation of contributions for a super PAC.

Lawyers for the senator had asked the court to dismiss charges related to the $700,000 in contributions from Melgen to Senate Majority PAC, a super PAC run by former aides to Sen. Harry Reid (D-Nev.) that made independent expenditures to support Menendez’s 2012 reelection, which prosecutors allege were made in exchange for official acts.

The basis for dismissal offered by Menendez’s lawyers were the Supreme Court’s 2010 Citizens United and 2013 McCutcheon decisions. Those two cases redefined corruption as only explicit bribery, excluding influence and access. The senator’s lawyers argued that this redefinition of corruption and Citizens United’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption” provided freedom of speech protections for all “efforts to influence and obtain access to elected officials,” including any campaign contribution.

Judge William Walls disagreed, ruling that the charges related to the super PAC contributions made by a corporation run by Melgen and solicited by Menendez would stand. In his opinion, Walls writes that “the Constitution does not protect an attempt to influence a public official’s acts through improper means.” (Read Walls' decision here.)

While Citizens United may state that independent expenditures cannot lead to corruption, bribery statutes view the super PAC contributions made and their value in different, subjective terms.

“Notwithstanding the statement in Citizens United that independent expenditures have no actual value to candidates, a jury could find that Defendant Menendez placed value, albeit subjective, on the earmarked donations given to Majority PAC by Melgen,” Walls writes.

He goes to write, “Even if contributions to Majority PAC had no objective value to Menendez, they unquestionably had value to Majority PAC as an entity, and [the federal bribery statute] criminalizes corruptly seeking anything of value, even for another person or entity, in return for being influenced in the performance of an official act.”

So, does a judge ruling that corporate contributions to a supposedly independent group can be a corrupting bribe undermine the Supreme Court’s assertion in Citizens United that independent expenditures cannot corrupt?

Rick Hasen, election law professor at University of California, Irvine and proprietor of the Election Law Blog, said the “super PAC issue in this context is a red herring.”

Hasen raises the question of “whether it was possible to reconcile the idea from Citizens United that independent spending cannot corrupt with the concept that an agreement with a candidate to make a contribution to a super PAC can be a bribe.”

“They are reconcilable,” he said. “One can believe both things without contradiction.”

As Walls notes in his ruling, prior cases involving former Rep. William Jefferson (D-La.) and former Alabama Gov. Don Siegelman (D) held that a bribe can be solicited for a third party -- in Menendez’s case, a super PAC. Citizens United did not change this aspect of the court’s interpretation of bribery.

However, Walls' decision in the Menendez case may very well reveal that the Supreme Court was “either naive or disingenuous” in its Citizens United ruling, according to Paul Ryan, senior counsel for the Campaign Legal Center, a nonprofit that supports campaign finance reform.

“Judge Walls stated the obvious,” Ryan said. “This is something we’ve all known for years. It was predictable that when super PACs were created in 2010 that contributions could lead to corruption.”

Ryan sees a “silver lining” in the Menendez case and other possible future corruption cases involving contributions to super PACs and other supposedly independent groups: that they could lead the court to reassess its decision.

In its Citizens United decision, the court majority notably dismissed the evidentiary record of corruption and the appearance of corruption fostered by the “soft money” system of unlimited contributions to political parties because it did not provide examples of the quid pro quo bribery that the court now views as the only definition of corruption.

But the decision did state, “If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern.”

“Perhaps with an evidentiary record in a case down the road the court could decide that elected officials could succumb to independent expenditures,” Ryan said.

In this view, cases like Menendez’s could provide the legal building blocks for any potential reversal of the Citizens United decision from a future Supreme Court.

CLARIFICATION: This article has been amended to clarify that Menendez is not facing charges for solicitation of super PAC contributions, but instead faces charges for trading official acts in exchange for those contributions.

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