Corruption United: Will the Supreme Court Apply Citizens United to Ordinary Corruption?

By: Alexander Barnes Cook

I. Introduction
Citizens United, a campaign finance case, was decided on January 21, 2010 and was met with widespread criticism. The case’s central holding was that the Federal Election Commission’s regulation of independent expenditures violated the Free Speech Clause of the First Amendment. The Court’s decision fell in line with previous cases that dealt with campaign finance regulation, and had a massive impact on how money is spent in election campaigns. This impact was expected, but what was not expected was how Justice Kennedy’s ingratiation and access clause of the opinion would be used going forward. Justice Kennedy opined that “ingratiation and access . . . are not corruption” and this clause would later be used by public officials, namely Governor Robert McDonnell of Virginia, as a defense to bribery and corruption allegations. The McDonnell Court never directly addressed this defense, but with the addition of Justice Brett Kavanaugh and Justice Neil Gorsuch to the Court, a ruling that Citizens United applies to ordinary corruption may not be too far off.

II. Facts of the McDonnell Case
Jonnie Williams, the Chief Executive Office of Star Scientific, first met McDonnell before he was elected the 71st Governor of Virginia when he offered then candidate McDonnell the use of his private airplane to travel Virginia with while campaigning. A few months later a quid pro quo relationship appears to have started between McDonnell’s wife, (insert her name), and Mr. Williams. The First Lady stated at one point to Williams, the “Governor says it’s okay for me to help you and — but I need you to help me. I need you to help me with this financial situation.”
Jonnie Williams made good on his promise to help the McDonnell’s with their financial situation. Williams provided numerous gifts and loans to the Governor and the First Lady including: weekend getaways with his Ferrari to drive, a Rolex watch, a fifty-thousand dollar loan, a twenty-thousand dollar loan, paying for several rounds of golf for the Governor and his children, providing the McDonnell’s with more weekend trips, and giving a ten-thousand dollar gift to the McDonnell’s daughter on her wedding day. In sum, Mr. Williams provided the McDonnell’s with “over $175,000 in gifts and loans.” Although the Court never addresses the First Amendment argument raised in McDonnell’s brief, Chief Justice Roberts’s unanimous opinion echoes the decision in Citizens United and appears to affirm the ingratiation and access clause of the decision. This leaves open the question of how McDonnell and Citizens United will be applied going forward now that there are two new Justices on the Court.

III. The Future of the Ingratiation and Access Clause and the Current Supreme Court

Prior to his appointment to the Supreme Court, Justice Kavanaugh ruled, before Citizens United was decided, that certain regulations promulgated by the Federal Election Commission were unconstitutional. Kavanaugh, in his opinion, noted that “[d]onations to and spending by a non-profit cannot corrupt a candidate or officeholder, at least in the absence of some McConnell-like evidence establishing such corruption or the appearance thereof.” Further, Justice Kavanaugh in the past has discussed the idea that limiting how much money someone can contribute to candidates has serious First Amendment problems. In Buckley v. Valeo, the Court stated: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Justice Kavanaugh has called this sentence “one of the most important sentences in First Amendment history.”
Justice Gorsuch’s future jurisprudence in this area is a bit harder to predict, but Gorsuch is a firm believer that money in politics go hand in hand with the First Amendment. To this point he has stated: “the act of contributing to political campaigns implicates a ‘basic constitutional freedom,’ one lying ‘at the foundation of a free society’ and enjoying a significant relationship to the right to speak and associate—both expressly protected First Amendment activities.” Recently, Justice Gorsuch dissented in the Court’s 7-2 decision to reject an appeal by a top Republican Party attorney (Justice Thomas was the other dissenting justice). The decision to reject essentially affirmed the McCain-Feingold Act, upholding contribution limitations to individual candidates. Justice Gorsuch’s dissent simply stated he would have heard the appeal, but Gorsuch has in the past been a proponent for striking down contribution limitations as violating the First Amendment. Clearly, Justice Gorsuch is of the understanding that money in politics does not have a corrupting effect on the recipients of that money, or at least that the effect it has does not rise to the level that strict scrutiny would require in order to regulate. With that said, Justice Gorsuch’s views on money’s effect on politics and politicians would possibly lead him to agree that Citizens United could apply to the ordinary corruption context, and therefore give First Amendment protection to defendants in bribery and corruption cases.

IV. Concluding Thoughts
The Court that decided McDonnell was unwilling to address the Citizens United argument that Governor McDonnell raised in his brief. However, the McDonnell opinion, written by Chief Justice Roberts, reads strikingly similar to Justice Kennedy’s opinion in Citizens United, especially the ingratiation and access clause from that case. Due to Justice Gorsuch and Justice Kavanaugh’s opinions on the First Amendment in the campaign finance context, and the fact that Chief Justice Robert’s unanimous opinion in McDonnell echoes Citizens United may indicate that the Court, in the future, may be ready to apply Citizens United’s definition of corruption to plaintiffs outside of the campaign finance context.