Whittemore cites U.S. Supreme Court ruling in appeal
April 3, 2014
RENO — Lawyers for Nevada developer and ex-lobbyist Harvey Whittemore argue his conviction for illegally funneling money to Sen. Harry Reid should be overturned based in part on a new ruling by the U.S. Supreme Court that struck down some limitations on individual campaign contributions as unconstitutional.
In filings to the 9th U.S. Circuit Court of Appeals, Whittemore's lawyers say that placing limits on the amount of money he can contribute to an individual candidate violates his First Amendment right to free speech
Whittemore is appealing his conviction and 2-year prison sentence for skirting contribution limits by writing checks for more than $130,000 to family and employees who the government called "straw donors" who would simply hand the money over to Reid's re-election campaign. Reid was not accused of any wrongdoing, although he had to amend his 2007 report to the Federal Election Commission.
Whittemore maintains that while he encouraged them to contribute to the Nevada Democrat, the checks were "unconditional gifts" with no strings attached that became the recipients' property for them to do with as they pleased.
His First Amendment argument appeared to gain traction Wednesday when the U.S. Supreme Court struck down similar limits on the total an individual can contribute to multiple candidates in an election cycle.
Whittemore's lawyers say it's clear that U.S. District Judge Larry Hicks erred when he failed to instruct the jury to consider whether Whittemore illegally made contributions "in the name of another" or provided them with the money unconditionally.
"Mr. Whittemore engaged in two perfectly lawful activities. He gave unconditionally of portions of his personal wealth to the object of his bounty. And he likewise exercised his fundamental First Amendment right to advocate and solicit support for the political candidate of his choice," they said in a 483-page filing with the 9th Circuit late Wednesday.
While the high court's 5-4 decision in McCutcheon vs. FEC did not specifically address the individual limits, Whittemore's lawyers said it suggests it's only a matter of time before the justices reverse a 1976 ruling that limits on campaign contributions in general are legal but limits on campaign spending are not.
If the high court ends up overturning all limits on individual contributions, the question of whether Whittemore violated campaign spending limits would become moot because it wouldn't matter whether the $133,000 that ended up in Reid's campaign fund came directly from Whittemore or through the "straw donors."
The government's initial response to the 9th Circuit is due May 2.
Daniel Bogden, U.S. attorney for Nevada, said prosecutors haven't determined if or how the high court's new ruling affects the appeal.
"We are currently evaluating the Supreme Court ruling in that case in light of Judge Hicks' previous rulings, and will act accordingly once we have reached a decision concerning the Whittemore case," he said in an email on Thursday to The Associated Press.
Whittemore, who is free without bail pending the outcome of his appeal, once headed a billion-dollar real estate company and pulled the strings of state politics as a prominent lobbyist for more than a decade.
Assistant U.S. Attorney Steven Myhre said during the trial last May the fact no one Whittemore approached refused his request to contribute to Reid made it clear they felt obligated to do so.
Whittemore started writing the $5,000 checks — $10,000 to couples — to a total of 29 people on March 27, 2007, Myhre said. Within days, all of them turned around and wrote checks for the maximum $4,600 to Reid's re-election campaign, he said.
"It's the unity of the action, the timing of the action," he said. "Everybody did the same thing."