What’s Worse than Citizens United?

Question: What could be worse than Citizens United?

Answer: Possibly…United States v. Danielczyk and Biagi

Some may recall that two of Hillary Clinton’s fundraisers, William Danielczyk and Eugene Biagi were indicted for some serious campaign finance violations. They had reimbursed individual campaign contributors with funds from corporate sources. An act that is not ostensibly protected as “speech” under Citizens United because the funds were direct campaign contributions to a candidate. Citizens United only paved the way for PAC funds and issue ads — indirect corporate spending.

These two fundraisers have set-off a legal firestorm that may dramatically enhance the corporate powers found in Citizens United. (Brace yourself, Democrats also abuse campaign finance laws.)

Intitially, a U. S. District Court dismissed the charges, citing Citizens United, but early last summer the 4th Circuit Court of Appeals reinstated the charges claiming that direct corporate-to-candidate expenditures are not allowed under Citizens United.

Last November, Danielcyzk and Biagi filed with the  U. S. Supreme Court a Petition for a Writ of Certiorari, which is Latin for a legal mulligan — a do over. They essentially asked the high court to review the case and reverse the COA ruling.

In late January, the Department of Justice chimed in with an amicus brief to SCOTUS arguing that the court should not take the bait. The court will decide in a few weeks whether or not to hear the case.

Okay, so what does all this mean and what might occur?

SCOTUS may possibly remand the case back to the lower court where it would be heard (which is not to say either party couldn’t petition the high court again.) On the other hand, it could find itself on the high court docket — a political hot potato, even for those appointed for life. Chief Justice Roberts amazed everyone (and probably himself) when he exercised forbearance in last year’s Obamacare ruling. Judicial scholars speculated that he was focused on legacy over partisan politics when he found a loophole where counsel failed to do so. He is cognizant that those same judicial scholars lined-up after the Citizens United ruling to defame it as one of the worst Supreme Court decisions in history…those being the same scholars that will document history, and his tenure on the court. Oh, books will be written!

Worst case scenario: the high court upholds the original district court dismissal — how would that further corrupt the campaign landscape?

The DOJ amicus brief makes the case that wealthy contributors could incorporate multiple times enabling them to skirt laws that limit individual campaign contributions. Additionally, they would be able to hide their identities and motives behind those dummy corporations.

Another potential problem is that once those millions are directly deposited in a candidate’s coffers the money would have even fewer restrictions attached to it. Media outlets, primarily television, are required by law to fact-check issue ads and pull them if they are scurrilous (although they rarely do, it’s a lawsuit waiting to happen…). But, candidate ads are wide open to making wildly false accusations, with no liability attached to the media outlet. Also, candidates are given a special price, the political rate, which affords them considerably more buying power than issue ads and PAC money. Presidential candidates are additionally rewarded with priority airtime and they may bump downticket races right off the airways. The big dollars would rule supreme.

It would be Citizens United — on steriods.

Amy Kerr Hardin This article also appears in Voters Legislative Transparency Project


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