Voting is well underway in the fourth presidential election cycle since the Supreme Court’s Citizens United decision supersized the role of money in American elections. The impact of the court’s decision, which allowed corporations to spend unlimited sums on independent expenditures aimed at influencing elections and led to the creation of super PACs, has been on full display as super PACs and outside groups have already spent more than $320 million on the nomination fight.

In Citizens United, the majority ruled that corporate political spending that is not coordinated with a candidate or their campaign—known as “independent expenditures”—cannot be restricted, with the court concluding that such expenditures, “including those made by corporations, do not give rise to corruption or the appearance of corruption.” This determination was key to the ruling since preventing corruption – narrowly defined as just quid pro quo arrangements – was identified as the only compelling interest that could justify government constraints on political spending, which the court considers a form of First Amendment protected speech. 

In the 14 years since, history has not been kind to the Supreme Court’s dismissal of the corrupting potential of money spent on independent expenditures. Despite the court’s assurances, prosecutors have since found multiple examples of money meant to support independent expenditures that they alleged played a role in actual corruption. 

According to an analysis by CREW, since the Citizens United ruling the Justice Department has brought charges in at least four cases that involve allegations related to quid pro quo bribery and money tied to independent expenditures – the very scenario that the Citizens United court cast doubt upon. Regardless of their outcomes, the cases support the common sense conclusion that the majority in Citizens United found unconvincing: Even if a candidate doesn’t technically control election-influencing expenditures that benefit them, the money spent to make them can be used as part of a corrupt quid pro quo arrangement. 

Bribes and independent expenditures

  • USA v. Householder et al.: In July 2020, then-Ohio Speaker of the House Larry Householder, along with several associates and Generation Now, a 501(c)(4) nonprofit, were indicted in a federal racketeering conspiracy involving approximately $60 million paid to Generation Now by electric utility FirstEnergy to pass and uphold a billion-dollar nuclear plant bailout. The Justice Department alleged that Householder and his allies conspired to violate the racketeering statute through honest services wire fraud, receipt of millions of dollars in bribes and money laundering. According to prosecutors, one of the purposes of the corrupt scheme was “obtaining, preserving, and expanding Householder’s political power in the State of Ohio through the receipt and use of secret payments.” One of the uses of those secret payments was to fund a super PAC through Generation Now that paid for advertisements benefiting Householder and his allied candidates ahead of Ohio’s primary elections in 2018, which helped set the stage for Householder to be elected speaker in January 2019. In July 2021, FirstEnergy agreed to pay a $230 million monetary penalty as part of a deferred prosecution agreement that also required the release of a statement calling the use of section 501(c)(4) nonprofits, which don’t have to disclose their donors, “central” to its influence effort because they allowed the company to “conceal payments for the benefit of public officials and in return for official action.” Following guilty pleas by two co-conspirators who agreed to testify in the case, Householder and former Ohio Republican Party chairman Matt Borges were found guilty in March 2023 by a jury of participating in a racketeering conspiracy.
  • USA v. Lindberg et al.: In March 2019, the Justice Department indicted insurance mogul Greg Lindberg and three others, including a former congressman who was then-chairman of the North Carolina Republican Party, alleging that they were part of “a bribery scheme involving independent expenditure accounts and improper campaign contributions.” According to the indictment and subsequent prosecution, Lindberg and his associates offered millions in campaign support to North Carolina Insurance Commissioner Mike Causey in exchange for the removal of an insurance commission official who oversaw Lindberg’s company. As part of his proposed deal with Causey, who cooperated with law enforcement, Lindberg agreed to support him by routing hundreds of thousands of dollars directly to Causey’s campaign through the North Carolina Republican Party and by funding outside groups that would spend money to benefit Causey’s re-election. In October 2019, former Rep. Robin Hayes (R-NC) pleaded guilty to making false statements to the FBI. Lindberg and a consultant to his company, John Gray, were found guilty by a jury in March 2020 while company executive John Palermo was acquitted. In June 2022, the 4th Circuit Court of Appeals vacated Lindberg and Gray’s convictions and ordered a new trial. The new trial is expected to take place in the Spring of 2024. 
  • USA v. Menendez: In April 2015, the Justice Department indicted Sen. Bob Menendez (D-NJ) and Salomon Melgen, an ophthalmologist, “in connection with a bribery scheme in which Menendez allegedly accepted gifts from Melgen in exchange for using the power of his Senate office to benefit Melgen’s financial and personal interests.” The Justice Department alleged that Menendez accepted close to $1 million in gifts and campaign contributions from Melgen in exchange for using his Senate office to influence contractual and Medicare billing disputes to Melgen’s benefit and to support the visa applications of several of Melgen’s girlfriends. The government identified $751,500 in campaign contributions by Melgen to entities benefitting Menendez’s 2012 reelection effort as part of their alleged exchange for official action by Menendez. That included $600,000 in super PAC contributions Melgen made through his ophthalmology practice, which were earmarked for the New Jersey Senate race in which Menendez was running. In November 2017, the jury trial of Menendez and Melgen ended in a mistrial due to a deadlocked jury. In January 2018, the judge in the case issued an opinion stating that while Citizens United does not bar prosecutions for bribery schemes involving contributions to super PACs and that a rational juror could find that Melgen’s super PAC contributions were a thing of value under the relevant bribery statute, the government had not produced sufficient evidence to establish an explicit quid pro quo connected to Melgen’s campaign contributions. Soon after, the Justice Department announced that it would not seek to retry Menendez. Melgen was convicted in April 2017 on separate Medicare fraud charges, but was granted clemency by President Trump in January 2021.
  • USA v. Vazquez Garced, et al.: In August 2022, former Governor of Puerto Rico Wanda Vazquez Garced was indicted, along with two others including Julio Martin Herrera Velutini, on bribery charges related to financing her 2020 campaign. According to the indictment, beginning in 2019, a bank owned by Herrera Velutini was the subject of an examination by Puerto Rico’s Office of the Commissioner of Financial Institutions (OCIF). While the examination was active, Herrera Velutini, along with a former FBI agent, allegedly offered through intermediaries to financially support Vazquez Garced’s 2020 gubernatorial campaign in exchange for her replacement of the OCIF commissioner with someone of Herrera Velutini’s choosing. The Justice Department alleged that Vazquez Garced agreed to the deal, replacing the commissioner with a former consultant for Herrera Velutini’s bank. To support Vazquez Garced’s campaign in return, Herrera Velutini and the former FBI agent allegedly paid more than $300,000 to political consultants. According to the indictment, Herrera Velutini also conveyed to Vazquez Garced through intermediaries that he was willing to create a super PAC supporting her in exchange for the replacement of the OCIF commissioner. After Vazquez Garced lost her primary, the Justice Department alleges that Herrera Velutini conspired to bribe her successor, Pedro Pierluisi, by offering, through intermediaries, funds to support Pierluisi’s campaign in exchange for action to resolve OCIF’s audit of Herrera Velutini’s bank in a favorable manner. In the indictment, the Justice Department alleged that Herrera Velutini and his co-conspirators sought to offer bribes in the form of payments to a super PAC to support Pierluisi’s election, which ultimately resulted in a $25,000 contribution. A trial date has not been scheduled yet. 

Whether the goal was to obtain favorable legislation or to shape the decisions of regulators, these cases demonstrate how the new avenues for political money opened by Citizens United can be used by special interests to bribe government officials. 

Independent expenditures and influence

The Citizens United majority also dismissed the idea that buying influence and access was a form of corruption that could justify restrictions, proclaiming that “the fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt.” Quoting Justice Anthony Kennedy’s own words in dissent from a prior campaign finance case, the Kennedy-led majority asserted that “[f]avoritism and influence are not…avoidable in representative politics” and “[d]emocracy is premised on responsiveness.”

As CREW’s Stuart McPhail has noted, the court’s “hair-splitting between protected ‘influence and access’ and the prohibited ‘quid pro quo’ would…come as a surprise to the Framers—and indeed every generation of American to consider the matter prior to the Court’s recent turn.” The late Justice John Paul Stevens argued much the same in the dissent he authored in the Citizens United case, referring to the majority’s position as a “crabbed view of corruption” that had previously been rejected by the Supreme Court and failed to recognize that “the difference between selling a vote and selling access is a matter of degree, not kind.” The vast majority of the American public, who believe donors and special interests have too much influence on lawmakers, would also seem to agree. 

In the 14 years since the Citizens United ruling, law enforcement has also tied this different degree of corruption to funding for independent expenditures. According to CREW’s analysis, at least four prosecutions in the post-Citizens United era have highlighted how super PACs are a vector for using large contributions to seek access to and influence with elected officials.

  • When now-convicted Fugees rapper Prakazrel “Pras” Michel was indicted along with an infamous Malaysian financier known as “Jho Low” for conspiring to make and conceal foreign and conduit campaign contributions during the United States presidential election in 2012, including more than $1 million to a super PAC, the Justice Department described the scheme as being aimed at buying “access to, and potential influence with, a candidate, the candidate’s campaign, and the candidate’s administration.” 
  • In another case, when former Rudy Giuliani associates Lev Parnas and Igor Fruman, along with several others, were indicted for conspiring to make conduit contributions and to violate the ban on foreign donations, the Justice Department alleged that Parnas and Fruman made contributions in the name of another to two super PACs in order to “obtain access to exclusive political events and gain influence with politicians.”
  • Former executives of a government contractor who were indicted for conspiring to make unlawful political contributions via straw donations to a candidate’s campaign and a super PAC supporting the campaign were described by the government as seeking to “gain favor” with the candidate. 

Relying on the record developed in a prior case, McConnell v. FEC, the Citizens United majority claimed there were no “direct examples” before them of votes being exchanged for expenditures and only “scant evidence that independent expenditures even ingratiate.” It would be hard now, 14 years after Citizens United was decided, to call the evidence of both quid pro quo exchanges and ingratiation “scant.”

The examples above only address cases where prosecutors believed they could prove beyond a reasonable doubt that the law had been violated, which means they almost certainly represent just the tip of the iceberg in terms of the corruption the Citizens United decision unleashed into the American political system. Congress could fill out the record further by embarking on the type of fact-finding investigation that followed the 1996 election and highlighted the types of soft money abuses that the Bipartisan Campaign Reform Act of 2002 sought to address. 

The Citizens United majority, justifying their decision to overrule Austin v. Michigan Chamber of Commerce, wrote that the Court’s previous holding had been “undermined by experience since its announcement.” But the same could be said today of that same majority’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption.” Numerous scandals, prosecutions and convictions demonstrate that independent expenditures can and do fuel corruption, exposing the majority’s conclusion as fundamentally flawed.

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