Constitution Check: When is making a campaign contribution a crime?

Constitution Check: Fact-checking the news
Constitution Check: Fact-checking the news

Lyle Denniston looks at the outcome of the John Edwards case, and if the Constitution will tolerate the imaginative use of the criminal law to restrain political campaign donations.

The statement at issue:

“On the bottom line…was a federal case that despite a great many advantages had to stretch the limits of the federal law under which it was prosecuted. This case and the legal logic behind it confounded experienced, knowledgeable lawyers. It is no wonder, therefore, that a jury of 12 could not come to a conclusion as to whether Edwards was truly guilty of violating the law on five charges.”

—Editorial, Winston-Salem Journal, June 2, commenting on the jury verdict May 31 in the John Edwards trial: not guilty on one charge, with a deadlock on five other charges.

We checked the Constitution, and…

It is very much an open question whether the Constitution will tolerate the wide, frequent or imaginative use of the criminal law to restrain the giving or receiving of donations in political campaigns. As the Supreme Court has enlarged the protection of the First Amendment’s free speech clause for election spending, the room left for criminal prosecution may be shrinking. But, politicians and their donors must beware: there is still room.

During the trial of former presidential and vice presidential candidate and ex-Senator John Edwards for alleged campaign donation crimes, his attorney, Abbe Lowell, told the jury: “This is a case that should define the difference between a wrong and a crime….between a sin and a felony.”

But the mere fact that the prosecution of Edwards went forward was strong evidence that some federal prosecutors think that, in the field of money in politics, the wrong and the crime might be the same.

It was wrong and it also was a crime, prosecutors charged, for Edwards’ campaign to accept hundreds of thousands of campaign contributions, and then divert a good part of the money to try to cover up the scandal over his fathering a child during an affair with a campaign aide.

That prosecutors were thwarted–at least temporarily–by the jury in federal court in Greensboro does not prove that the risk has vanished for other campaigns, however. In fact, on Monday, four days after the Greensboro verdict, the Supreme Court in Washington refused to hear two appeals in a high-profile case from Alabama that has sent a former governor of that state and one of his donors to federal prison for years.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Former Governor Don Eugene Siegelman, along with the former head of a hospital chain in Alabama, Richard M. Scrushy, are serving lengthy prison terms for bribery and fraud, based on a $500,000 contribution by Scrushy. The money was sent to the governor’s office to help promote a ballot measure that the governor favored; prosecutors said it was a payoff for Siegelman’s appointment of Scrushy to a state board regulating hospitals in the state.

The two, in separate appeals, asked the Supreme Court to declare that it is not a crime to make such a donation, unless there is an explicit agreement to exchange a government favor for the money, quid pro quo. The justices should take on that issue, Siegelman’s lawyers argued, because it affects “all elected officials throughout the nation, and all who contribute to electoral or issue campaigns.”

But, without comment, the Supreme Court chose to bypass both cases, leaving intact lower court decisions that refused to impose new limitations on campaign prosecutions.

If, however, the Edwards case had resulted in a guilty verdict (or it is retried and then brings a guilty verdict), that may well pose the constitutional question surrounding criminality more starkly.

Auditors for the Federal Election Commission, the agency that decides what is legal and illegal (in a non-criminal sense) in campaign financing, concluded that Edwards did not even have to report the contributions–a clear indications that they were probably legal under federal election law.

In fact, an election law expert, University of California–Irvine professor Richard Hasen, has said that the Edwards case fell into a recent pattern of prosecutors making “unprecedented use of criminal rather than civil liability,” leaving candidates unclear of what is or is not allowed.

Stretching the limits of criminal laws is supposed to be forbidden by the Constitution. The Supreme Court has repeatedly ruled that, because criminal prosecution threatens individuals’ liberty, people must have notice–in advance–of what is or is not a crime. Creative prosecutors, it would seem, are operating close to that line.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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