Federal Appeals Court: Criminal Corruption Charge Involving Super PAC Donations Can Proceed

Jeffrey Clements Posted by Jeffrey Clements.

Jeffrey Clements is a cofounder and general counsel of Free Speech for People, a national, nonpartisan campaign to oppose corporate personhood and pass the People’s Rights Amendment.


Today, the U.

Today, the U.S. Court of Appeals for the Third Circuit rejected an appeal by Sen. Robert Menendez (D-NJ) in a federal corruption case. The grand jury indictment, which we’ve written about here, alleges a pattern of quid pro quo corruption and bribery involving Sen. Menendez and a contributor, Dr. Salomon Melgen.

Importantly, the indictment alleges that the bribes included $600,000 in contributions to a Democratic super PAC called Majority PAC (now known as Senate Majority PAC) made by Dr. Melgen through his corporation, Vitreo-Retinal Consultants. (Just two years before accepting these alleged bribes, a lawyer for Senate Majority PAC, then operating under the name “Commonsense Ten,” had persuaded the FEC to allow unlimited corporate contributions to super PACs in the first place.) Sen. Menendez moved to dismiss the indictment, relying in part on the legally vulnerable SpeechNow decision, which created super PACs with its factless philosophizing that contributions to so-called “independent expenditure” committees could not possibly lead to corruption. The federal trial judge rejected that claim, and Sen. Menendez appealed.

Today’s Court of Appeals decision concerns a different aspect of the case (the Constitution’s Speech and Debate Clause), but by allowing the prosecution to move forward, it helps highlight how super PAC contributions can lead to quid pro quo corruption. It’s like the old joke about a farmer who’s asked if he believes in infant baptism. The farmer replies, “Believe it? I’ve seen it!”

That’s why the time is ripe for our recent FEC complaint that sets the stage for a legal challenge to SpeechNow. In that complaint, we specifically named Senate Majority PAC as a respondent, and the complaint specifically cites the contributions to Senate Majority PAC at issue in the federal criminal prosecution. Of course, we expect defenders of super PACs to push back against our case in the courts, raising both constitutional and procedural objections, just like Sen. Menendez did; indeed, the lawyer for Senate Majority PAC has already previewed some of his arguments via Twitter. As they argue, SpeechNow is settled law in the D.C. Circuit. But as an April 2016 D.C. Circuit opinion notes, what may appear to be “settled” constitutional law “sometimes turns out to be otherwise.” With the mounting evidence of the reality and appearance of quid pro quo corruption through super PACs, the movement to address super PACs through local legislation in states that are not bound by SpeechNow, and the prospect of changes on the Supreme Court, the time to challenge super PACs is now.

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