(This April 3, 2013 file photo shows Harvey Whittemore leaving the Lloyd George Federal Courthouse in Las Vegas, NV. Photo: Jerry Henkel/Las Vegas Review-Journal/AP)
A federal appeals court on Monday upheld the campaign finance convictions of a prominent Nevada attorney and fundraising bundler for Sen. Harry Reid’s 2010 reelection bid, but the defendant’s lawyers aim to make history by taking his loss to what they hope will be a more sympathetic U.S. Supreme Court.
F. Harvey Whittemore’s legal troubles began in late March 2007. Whittemore, a lobbyist for Nevada’s gambling, alcohol and tobacco industries, had yet to make good on the $150,000 he had promised to raise for the 2010 election campaign of his longtime friend and then-Majority Leader Reid, D-Nev., and the March 31 filing deadline was fast approaching.
Days before the deadline, Whittemore distributed $145,000 to 17 relatives and employees in individual increments of $5,000, and instructed each recipient to contribute to Reid’s campaign the $4,600 maximum under federal law during an election cycle.
For that, a jury in May 2013 found Whittemore guilty of exceeding the limit on individual contributions directly to candidates and making contributions in the names of others. Whittemore challenged both convictions and brought a First Amendment challenge to the maximum-contribution laws.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit on Monday took just about a page to dispatch that argument. The judges said Whittemore’s challenge “is foreclosed by the Supreme Court’s holding in Buckley v. Valeo … that contributions, as distinct from independent expenditures, may be limited,” wrote Judge William A. Fletcher on behalf of himself and judges Kim McLane Wardlaw and Paul J. Watford.
That part of Buckley, the panel noted, was not overruled in the Supreme Court’s recent Citizens United and McCutcheon campaign finance decisions.
The Supreme Court’s 2010 decision in Citizens United struck down limits on corporate spending, but not on direct campaign contributions, during elections. In last year’s McCutcheon ruling, the high court struck down limits on the aggregate amount a donor could contribute to many different candidates during an election cycle.
“[L]imits on contributions to individual campaigns were not at issue, and the court explicitly declined to address them,” the Ninth Circuit panel said.
A lawyer for Whittemore, Dominic Gentile of Las Vegas-based Gordon Silver, said he plans to bring Whittemore’s case to the Supreme Court. “We knew that the circuit couldn’t do anything about Buckley,” Gentile told the NLJ. “I anticipate and have for a long time that we will be filing a petition for cert on that issue and that issue alone.”
Given that only Justice Clarence Thomas has called for Buckley’s reversal, Gentile is not certain the court will agree with him, but he believes “that the issue is ripe.” And even though Whittemore was a supporter and bundler for a Democratic senator generally in favor of campaign finance reform, Gentile said on this matter his client and Reid differ, particularly now that Whittemore is several months into his two-year prison sentence.
Professor Daniel Tokaji, an election law expert at Ohio State University’s Moritz College of Law, said Whittemore’s case “is a poor candidate for Supreme Court review.”
“If the court were inclined to strike down the individual contributions limit, then I suppose it could take the case—but I don’t see anything in particular that makes this case a better vehicle for that than any other,” Tokaji said.
Leslie Caldwell, the assistant attorney general in charge of the Justice Department’s Criminal Division, said in a statement:
“Today’s decision confirms that the cornerstones of our campaign finance laws—contribution limits and transparency—are not subject to creative misinterpretations of those determined to break the law.”
The Ninth Circuit also rejected Whittemore’s claim that the money transfers were unconditional gifts allowed under Nevada law, and therefore could not be the basis of a federal crime.
“The status of the donated funds under state property law, at the time of their donation, was irrelevant,” Fletcher wrote. “The key,” Fletcher concluded, “is the source of the funds, regardless of the status of the funds under state property law at the time of the donation.”
To read on the National Law Journal website click, here.