jhan63@gmail.com has forwarded the following Law Bulletin Article to you.


June 17, 2010 Volume: 156 Issue: 118
Is using Citizens United as a defense a good idea?

By Janan E. Hanna

The last time I read the First Amendment, I didn't see anything about bribery and extortion, wire and mail fraud, conspiracy, racketeering, or lying in a criminal investigation.

Those are among the crimes Rod R. Blagojevich is facing in his federal corruption trial. But in a last-minute motion filed on the first day of trial, Blagojevich's lawyers argued that the entire prosecution was a violation of the impeached governor's First Amendment right to speak freely.

Creative? Maybe. Desperate? More likely. Particularly when you consider that the motion cites the U.S. Supreme Court's holding in Citizens United v. Federal Election Commission (558 U.S. 50 (2010)) to bolster the defense argument.
Huh? Citizens United?

You might recall that that case, decided earlier this year, opened the door for large corporations to give unlimited funds for political advertising. The majority held that corporations are "persons" under the law and, as such, are free to dole out as much campaign cash as they'd like to political organizations that favor a particular federal candidate, provided they disclose how much they give. And, yes, its ruling was grounded in the First Amendment.

But it did not say that individual candidates can extort or attempt to extort that cash in exchange for favors, or enter into the sorts of quid pro quo deals in which Blagojevich is alleged to have engaged. Nothing about that decision speaks to the conduct in which Blagojevich is alleged to have participated — seeking campaign cash in exchange for contracts, jobs and a U.S. Senate seat.

And the argument doesn't even square with the defense's theory of the case — that Blagojevich was a bit of a dunce surrounded by lawyers, fundraisers and lobbyists far more sophisticated who were calling the shots, maneuvering behind the scenes without his knowledge, to bulk up his campaign fund. It's as if he's saying, "Well, I might've said stuff that sounded like I was involved in extortion or bribery, but really, it was just talk."

Maybe he's talking about that conversation he had in December 2008, just days before his arrest, when, according to the prosecution's evidentiary proffer, he talks about getting something from "candidate A" in exchange for appointing candidate A to fill the U.S. Senate seat vacated by President Obama:

"Blagojevich told Robert Blagojevich [a co-defendant] to tell Individual P that while Senate Candidate A being named to the Senate seat was:
'possible … some stuff has to start happening now… right now. And we gotta see it. You understand?

'now you gotta be careful how you express that. And assume everyone's listening, the whole world's listening. But if there's tangible political support like you've said, start showing us now."

Free speech? Sure. But one could also easily infer from the words that the governor had a quid pro quo state of mind.


"It's a complete non sequitur to say that because people have the right to spend money on political campaigns he therefore has a First Amendment right to say what he said," said Martin H. Redish, the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. "He wasn't spending any money.
"Citizens United didn't in any way say that quid pro quos were protected by the First Amendment."

Blagojevich is, obviously, innocent until proven guilty. But in their opening statement and through their first witnesses, prosecutors have painted a portrait of a man who targeted beneficiaries of state action for hefty campaign contributions or commitments to hold fundraisers. His goal, according to the prosecutor's opening statement, was to raise as much campaign cash as possible before the start of 2009, when an ethics law would be enacted barring certain contributions from entities with state contracts.

Apart from the Senate seat, the state has started presenting evidence that shows that Blagojevich:

•wanted something from road builders in exchange for dangling $5 billion in additional tollway funds that he alone could authorize;

•wanted Rahm Emanuel (now Obama's chief of staff) to hold a fundraiser for him in exchange for a grant to a new school that Emanuel supported in his congressional district;

•stalled signing a piece of legislation favorable to the horse racing industry while continuously asking through a lobbyist and close friend about a $100,000 contribution from a race track owner;

•lost his temper when he was told that an executive at Children's Memorial Hospital — which was slated to receive a $10 million grant — hadn't returned Robert Blagojevich's fundraising calls. "Screw these guys," Rod Blagojevich said, according to the testimony of Alonzo "Lon" Monk. He then allegedly called his deputy governor to ask about the status of the grant and said, in an exasperated tone, "'Okay, fine. Don't do anything with it until I talk to you,'" Monk said;

•and his associates received a $500,000 kickback from the firm that was given investment control of $10 billion the state had borrowed to shore up the pension system;

•wanted a good job or a cabinet post in exchange for naming a particular Senate candidate.

In its motion to dismiss the case on First Amendment grounds, the defense attorneys write: "In this case, the defendant was engaged in political speech and expression. The government alleges that the political process in which he was engaged was criminal. This is a violation of the defendant's rights of freedom of speech and expression afforded him under the United States Constitution."

"… In Citizens United, the Supreme Court acknowledged the absolute right of free political speech and employed the strict scrutiny standard of review — political speech must prevail against all laws that suppress it, whether by design or inadvertence. Laws that burden political speech are subject to strict scrutiny."

There is a distinction between a political contribution given with the implicit understanding that the receiver is generally supportive of the contributor's agenda — say on environmental issues, gun issues, abortion — and an out-and-out declaration by a contributor that "I'll give you some money only if you promise to do X."

It seems the defense's argument is that Blagojevich, the receiver, was simply engaged in politics as usual and that none of it rose to the level of an exchange of favors for cash.

"Other than just the aura of Citizens … the court has recognized that money can play a role in political decision making. That's right," said Redish, who teaches First Amendment law. "Corporations can spend on behalf of candidates that they think will take positions in office that are sympathetic to their point of view.

"But it's painting with too broad a brush to suggest that simply because money can be used in the political process we have swept away all laws against bribery and extortion."

The motion is quite a stretch. I suspect it is a prelude to the summary judgment motion that Blagojevich will file at the conclusion of the state's case.

"Maybe the strategy is this: they're raising the stakes for the government's proof. They're saying, 'If you can't prove that I actually engaged in a quid pro quo and I may have been smart enough to insulate myself from that, then I have a First Amendment defense,'" Redish said.

Janan E. Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer. She can be reached at jhan63@gmail.com.