The Record: Menendez’s defense relies on odd twist


By law, super PACs are not allowed to coordinate with any candidate, and the Supreme Court has said in Citizens United and other cases that donations to super PACs are a protected form of free speech. In practice, some super PACs are now vastly funded “shadow campaigns,” according to Paul S. Ryan, a lawyer at the Campaign Legal Center in Washington. They also are a key component of any major candidate’s electoral strategy, he added.

“The prosecution is using this indictment to criminalize behavior the Supreme Court has repeatedly explained cannot be criminal, because contributions to super PACs cannot be improper ‘things of value’ to candidates who lack any say over their expenditures,” Menendez’s attorneys argued. They are preparing to file several appeals of rulings Walls issued last month. The judge allowed most charges against Menendez to proceed to trial.

“Judge Walls in the Menendez matter got it right,” Ryan said. “To me the answer is obvious: Yes, of course, big contributions to a super PAC that will be spent in support of an officeholder can corrupt that officeholder.”

But he said court rulings on the matter would likely do little to stem the tide of outside spending, which reaches new heights with almost every election. So far, Ryan said, Menendez’s case “certainly hasn’t done much to discourage or chill the activities of presidential candidates and their super PACs, who are pushing and in some instances breaking federal laws in this cycle.”

“What we have in the 2016 federal election cycle are super PACs created by candidates like Jeb Bush that are operated by close associates, that are dedicated to the election of a single candidate,” Ryan said. “It’s a shadow campaign.” ...

Ryan said that Citizens United “doesn’t foreclose this prosecution.” Writing for the Supreme Court, Justice Anthony Kennedy expressed concern that elected officials could “succumb to improper influences from independent expenditures,” he said

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