By: Alexander Barnes Cook<\/p>\n\n\n\n
I. Introduction II. Facts of the McDonnell Case III. The Future of the Ingratiation and Access Clause and the Current Supreme Court<\/strong><\/p>\n\n\n\n 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 \u201c[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.\u201d 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: \u201cthe 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.\u201d Justice Kavanaugh has called this sentence \u201cone of the most important sentences in First Amendment history.\u201d IV. Concluding Thoughts Check out staff member Alexander’s blog post on Citizen’s United! <\/p>\n","protected":false},"author":10,"featured_media":2484,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2483"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2483"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2483\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2484"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2483"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2483"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2483"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
<\/strong> Citizens United, a campaign finance case, was decided on January 21, 2010 and was met with widespread criticism. The case\u2019s central holding was that the Federal Election Commission\u2019s regulation of independent expenditures violated the Free Speech Clause of the First Amendment. The Court\u2019s 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\u2019s ingratiation and access clause of the opinion would be used going forward. Justice Kennedy opined that \u201cingratiation and access . . . are not corruption\u201d 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.
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<\/strong> 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\u2019s wife, (insert her name), and Mr. Williams. The First Lady stated at one point to Williams, the \u201cGovernor says it\u2019s okay for me to help you and \u2014 but I need you to help me. I need you to help me with this financial situation.\u201d
Jonnie Williams made good on his promise to help the McDonnell\u2019s 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\u2019s with more weekend trips, and giving a ten-thousand dollar gift to the McDonnell\u2019s daughter on her wedding day. In sum, Mr. Williams provided the McDonnell\u2019s with \u201cover $175,000 in gifts and loans.\u201d Although the Court never addresses the First Amendment argument raised in McDonnell\u2019s brief, Chief Justice Roberts\u2019s 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.
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Justice Gorsuch\u2019s 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: \u201cthe act of contributing to political campaigns implicates a \u2018basic constitutional freedom,\u2019 one lying \u2018at the foundation of a free society\u2019 and enjoying a significant relationship to the right to speak and associate\u2014both expressly protected First Amendment activities.\u201d Recently, Justice Gorsuch dissented in the Court\u2019s 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\u2019s 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\u2019s views on money\u2019s 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.
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<\/strong> 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\u2019s opinion in Citizens United, especially the ingratiation and access clause from that case. Due to Justice Gorsuch and Justice Kavanaugh\u2019s opinions on the First Amendment in the campaign finance context, and the fact that Chief Justice Robert\u2019s unanimous opinion in McDonnell echoes Citizens United may indicate that the Court, in the future, may be ready to apply Citizens United\u2019s definition of corruption to plaintiffs outside of the campaign finance context.<\/p>\n","protected":false},"excerpt":{"rendered":"