In Menendez case, Citizens United also on trial
WASHINGTON - The corruption case against New Jersey Sen. Robert Menendez has become a battleground over the controversial Supreme Court decision that allowed the flood of campaign money that is reshaping elections.
WASHINGTON - The corruption case against New Jersey Sen. Robert Menendez has become a battleground over the controversial Supreme Court decision that allowed the flood of campaign money that is reshaping elections.
In legal filings and a recent ruling, defense attorneys, prosecutors, and a district court judge have jousted over the limits of the 2010 Citizens United ruling, which opened the door to unlimited donations to independent political groups, such as super PACs and campaign-minded nonprofits.
The Menendez case is the first since the decision to use super-PAC donations as the basis for corruption charges against a lawmaker. It has touched a raw nerve in the debate over the influence of independent expenditures, said Kenneth Gross, a lawyer specializing in campaign finance.
Menendez has been an outspoken critic of Citizens United, railing against "unlimited, secret, big-money corporate donations" and cosponsoring bills to require more disclosure.
But as the Democratic senator faces prison, his lawyers have seized on the ruling. They point to its conclusion, which said independent expenditures "do not give rise to corruption or the appearance of corruption."
They have cited that language to try to get the judge to throw out bribery charges stemming from $600,000 a Menendez ally gave to Majority PAC, a Democratic super PAC that backed the senator's 2012 reelection.
Menendez has said he is innocent, and his lawyers accuse prosecutors of trying to "chip away" at the Supreme Court's ruling by charging him over the super-PAC donation.
Prosecutors say Menendez is trying to stretch Citizens United in ways the court never intended, effectively legalizing quid pro quo arrangements if the bribe is a super-PAC donation.
A win for prosecutors
New Jersey District Court Judge William Walls sided with prosecutors in a ruling last week, writing that donations to a super PAC could be valued by a lawmaker "notwithstanding the statement in Citizens United," and therefore could be part of a bribery scheme. He dismissed Menendez's attempts to throw out counts related to super-PAC giving.
Gross said that decision "goes to the heart" of the Supreme Court's rationale for allowing unlimited outside spending: that giving to independent groups will not corrupt lawmakers, who don't get the money directly.
"If the courts are [now] saying it is corrupting, then it's very hard to justify unlimited" donations, he said.
The legal battle is part of a case in which prosecutors allege that Menendez accepted campaign money, free private flights, and hotel stays in exchange for using his influence to help his friend and donor Salomon Melgen, a South Florida eye doctor. (Melgen, too, has said he is innocent.)
Ethics groups have cheered Walls' early ruling, saying the six-figure donations in the alleged bribery scheme show the dangerous consequences of Citizens United.
Other experts, however, say the case hinges on bribery laws and will not have a lasting impact on the high court decision.
The $600,000 earmarked for Menendez provides a window in the world opened up by Citizens United, said John Wonderlich, policy director for the nonpartisan Sunlight Foundation.
"It does undermine some of the central theses of that case," he said.
"The Supreme Court was wrong in Citizens United and now we have the experience to prove it," said Paul S. Ryan, of the Campaign Legal Center, a Washington-based watchdog group.
Menendez appeal
But the fight is not over.
Menendez's team plans to appeal the district court decisions, and his lead attorney, Abbe Lowell - along with Walls - suggested in a September hearing that the question could wind up back at the Supreme Court (though first it will go to the Third Circuit Court of Appeals).
Rulings on several other motions are pending, and Menendez's lawyers say prosecutors have failed to show a link between the super-PAC donation and the senator's official work.
Several campaign finance experts said the Supreme Court's decision throwing out limits on some political donations - as a matter of free speech - is different from the question of whether a lawmaker trades official favors for donations.
Menendez's lawyers are trying to take principles announced in Citizens United "and apply it to a very different case," said Richard Hasen, a campaign-finance expert at the University of California, Irvine, School of Law. "The arguments face an uphill battle if they try to go forward on appeal."
Menendez's lawyers have written that he could not be bribed by super-PAC money that he had no control over. Super PACs, by law, must operate independently from candidates.
"The Supreme Court has the last word and has spoken decisively, no matter the prosecution's opinion," his attorneys wrote.
Prosecutors counter that regardless of Citizens United's change to donation limits, bribery remains illegal.
Lawmakers still are barred from any scheme in which they promise favors in exchange for something else - whether it is a donation to a political entity, a job for a relative, or help for a favorite charity, several legal experts said.
"This particular case is of no more relevance to whether super PACs are good or bad as they are to whether charities are good or bad," said Robert Walker, a defense lawyer and former prosecutor.
@JonathanTamari