From the National Law Journal:
June 14, 2010LOS ANGELES — A federal appeals court has reinstated criminal charges against plaintiffs' attorney Pierce O'Donnell after concluding that the section of the Federal Election Campaign Act on which he was charged applied to conduit, or indirect, campaign contributions, not just to contributions made under false names.
O'Donnell of O'Donnell & Associates in Los Angeles was indicted on charges that he reimbursed 13 employees of his law firm and others who had contributed $26,000 in 2003 to the presidential campaign of former U.S. Sen. John Edwards, D-N.C. See The American Lawyer's article, "The Trials of Pierce O'Donnell."
Last year, a federal judge dismissed two of the three counts against him, prompting the federal government to petition the U.S. Court of Appeals for the 9th Circuit. The U.S. Federal Election Commission (FEC) and several good-government groups filed amicus briefs blasting the lower court's decision as "novel" and "unprecedented."
On June 14, the 9th Circuit reversed that decision.
"We hold that this law prohibits a person from providing money to others to donate to a candidate for federal office in their own names, when in reality they are merely 'straw donors,' " wrote 9th Circuit Judge Raymond C. Fisher, for the three-judge panel.
Amicus groups in the case praised the ruling.
"Today the 9th Circuit corrected one of the most incomprehensible district court decisions in recent memory," said Paul S. Ryan, associate legal counsel with the Campaign Legal Center, a nonprofit organization in Washington that focuses on campaign finance issues, in a prepared statement. The Campaign Legal Center filed an amicus brief in support of the U.S. government along with another Washington organization, Democracy 21, which focuses on election issues. "The district court decision overturned today was at odds with decades of settled law and made a mockery of campaign contribution limits," Ryan said.
Also filing briefs in the case supporting the U.S. government were the Federal Election Commission (FEC) and the nonprofit organization Citizens for Responsibility and Ethics in Washington (CREW). FEC spokeswoman Judith Ingram declined to comment. CREW's executive director, Melanie Sloan, issued a statement: "By reversing the lower court's decision, the 9th Circuit has helped ensure that our elections are not bought and sold by the wealthy. Mr. O'Donnell's scheme was a brazen violation of election law — and CREW praises the 9th Circuit for recognizing this fact."
"We're very pleased that the circuit has reinstated the illegal campaign finance charges," said Thom Mrozek, a spokesman for the U.S. Attorney's Office for the Central District of California. "Once this matter returns to the trial court, we look forward to continuing with the prosecution."
O'Donnell's attorney, George J. Terwilliger III, a partner at White & Case in Washington, issued a statement: "We are reviewing today's decision and considering our next steps. One option is to ask the U.S. Supreme Court to reverse the 9th Circuit. We will be looking at that possibility."
O'Donnell had been supported by the American Civil Rights Union (ACRU) in Alexandria, Va., which filed an amicus brief in the case. A call to Peter Ferrara, general counsel of ACRU, which is a conservative legal group, was not returned.
In the case, federal prosecutors had argued that O'Donnell had violated the Federal Election Campaign Act (FECA) even though the section under which he was charged does not specifically address "conduit" or "indirect" contributions. Section 441f of the FECA states: "No person shall make a contribution in the name of another person or knowingly permit his name to be used to effect such a contribution, and no person shall knowingly accept a contribution made by one person in the name of another person." O'Donnell had argued that Section 441f applied to cases in which a donor used a false name to make a contribution.
In last year's decision, U.S. District Court Judge S. James Otero agreed that Section 441f applied only to contributions made under false names, in part relying on the fact that the language of that section did not include the words "conduit" or "indirect."
But the 9th Circuit said that interpretation wasn't based on common sense.
"In ordinary usage, when Friend B delivers a gift that was provided by Friend A, we say that it was Friend A who gave that gift. In the context of gifts, the word 'giving' connotes the idea of providing from one's own resources rather than simply conveying, and thus we refer to the original source rather than the intermediary as the one who gave," the panel wrote.
The panel also found that the "text, purpose and structure" of the section indicates it was to be applied to straw donor contributions.
In their case against O'Donnell, prosecutors had brought three counts, alleging conspiracy to contribute in the names of others; contributing more than $10,000 in the names of others; and causing the campaign committee receiving the donations to make false statements to the FEC. The lower court ruling pertained only to the first two counts; federal prosecutors voluntarily dismissed the third count, citing concerns about a potential duplicate trial in the event the 9th Circuit reversed dismissal of the first two counts.