Taking Down D’Souza and Other Abuses of Power

In 2004 leftwing filmmaker Michael Moore released his film Fahrenheit 9/11, a searing attack on the legitimacy of George Bush’s election to the presidency in 2000, and his handling of events before, during, and after the terrorist attack of September 11, 2011 on the World Trade Center. Moore was unequivocal in his stated hope that the movie would “help unseat a president.”

Fahrenheit 9/11 was produced by Moore’s production company Dog Eat Dog Films, a corporation. At the time – before the Supreme Court decision in Citizens United v. Federal Election Commission—it was illegal for corporations to spend money “in connection with any election to any political office,” and illegal for an officer of a corporation to consent to such an expenditure.

Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?

DineshSomething much like this is, in fact, going on now, with nary a peep from the mainsteam press or the American left, and definitely not a peep from the President. Last month, Dinesh D’Souza, a long-time conservative commentator and director of the 2012 documentary film 2016: Obama’s America, was arrested, cuffed, and had his passport confiscated before being released on $500,000 bail. His alleged crime? Reimbursing four other individuals for making $5000 campaign contributions to the unsuccessful U.S. Senate campaign of his college friend, Wendy Long.

It didn’t take long before a Matt Drudge tweet had conspiracy theories began buzzing around the conservative internet. Then Gerald Molen, co-producer of 2016, told the Hollywood Reporter that prosecutors were “criminalizing dissent through the selective enforcement of the law.”

The response from the mainstream press has been to pooh-pooh such concerns as conservative paranoia. But as Joseph Heller wrote in Catch 22, just because you’re paranoid doesn’t mean they aren’t out to get you.

For years the political left has been wrapped up in the notion of “campaign finance reform.” “Reform” has aimed to limit the speech of a litany of “conservative” villains—the “wealthy,” the “rich,” the National Rifle Association, “big oil,” banks, the Koch Brothers—who are supposedly frustrating the will of the people by preventing a variety of liberal policies—gun control, higher capital gains and income taxes, oil taxes, environmental legislation, single payer health insurance—from passing. Then, in January 2010, the Supreme Court decided Citizens United v. FEC in the same week that Scott Brown’s improbable Senate victory in Massachusetts demonstrated to the President and congressional Democrats the real unpopularity of Obamacare and much of the President’s agenda. Ever since, Democrats have been at fever pitch calling for new restrictions on the speech of their political opponents.

Within days of Citizens United, Senator Chuck Schumer (D. N.Y.) announced plans to introduce legislation with the comment that one should not underestimate the “deterrent effect” it would have on the political speech. Over the next year, the President publicly accused his critics of being “a threat to our democracy” and “a problem for democracy.” At least nine Democratic Senators wrote to the IRS demanding investigations of conservative political groups, not including Carl Levin (D. Mich.), whom former IRS Commissioner Steve Miller told investigators was “complaining bitterly” to the IRS about the need to go after Conservative groups. Indeed, in the same week that D’Souza was arrested, Senator Schumer publicly again urged the President to use the IRS to silence his conservative critics.

Within months of the Citizens United decision the IRS began its practice of targeting conservative non-profits, delaying their applications for tax-exempt status and making intrusive demands into their activities. Last spring Senator Sheldon Whitehouse (D. R.I.) convened a hearing of the Senate Judiciary Committee Subcommitee on Crime and Terrorism to discuss “abuses” and accused various conservative groups of violating the law.

Meanwhile, conservatives felt the bite in other ways as well. The tax return, and with it the names of donors to the National Organization for Marriage (NOM) were leaked from the IRS to the Human Rights Campaign, a pro-gay rights group that had been demanding the names of NOM’s donors and threatening them with boycotts of their businesses and employers. After starting a conservative non-profit called True the Vote, Catherine Englebrecht found her business audited by three different government agencies, and was visited at least six times by the FBI. In her prior twenty years in business, she had never been audited or investigated. Coincidence?

I have no idea if Dinesh D’Souza is guilty of the alleged campaign finance law violations. One cannot make campaign contributions in the name of another or exceed the legal limit—then $5000—to a candidate in a campaign cycle. But most people are not aware of this restriction, and violations of this provision are both relatively common and usually inadvertent. Such violations are typically handled as civil matters, subjected to small fines. This is especially true when, as here, the race in which the violation occurred was never even competitive. Long’s Democratic opponent, Kristin Gillibrand (D. N.Y.) won with over seventy percent of the vote while outspending Long by over $13 million. Criminal indictments and handcuffs for a first-time offender will strike many as overkill.

The charges were brought by Preet Bharara, U.S. Attorney for the Southern District of New York, Obama donor, and a protégé of the aforementioned Senator Schumer. Bharara says that the potentially illegal contributions were uncovered as part of a “routine review,” but that seems unlikely, since a routine review of candidate reports typically reveals nothing that would indicate that contributions were made in the name of another. Barring a confession, you find such contributions by investigation and audit. Bharara also claims that he takes “a zero tolerance approach to corruption of the electoral process,” but after nearly five years his office has hardly established such a reputation. And if one is a busy U.S. Attorney concerned about corruption, a relatively small donation to an old friend in a hopeless Senate race hardly seems like a top concern.

There is no such thing as a benign speech police. Give government the power to harass opponents because of their political speech, and government is likely, at some point, to use it. Campaign finance laws are typically justified by the alleged need to “restore confidence in government.” But it’s hard to see this prosecution as doing anything but increasing suspicion of government.

Criticizing the President doesn’t make you immune from campaign finance laws. But context matters. In light of the attacks Democratic politicians have launched on the legitimacy of opposition political speech, even unbiased observers can be forgiven for thinking that the government’s charges look like the crassest form of political retaliation and intimidation. Talk like thugs who want to use the law to silence and intimidate your political opponents, and people might think you are thugs who do use the law to silence and intimidate your political opponents.

The shame – and perhaps the most alarming aspect of the D’Souza arrest—is that Democrats seem comfortable with that.

Bradley A. Smith is the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School. He is former Chairman of the Federal Election Commission, and Chairman of the Center for Competitive Politics.

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Comments

  1. Philip W says

    1. None of the campaign finance debates of recent years have challenged the idea of limiting the amount a single person can donate to a single candidate. (Certainly, there are people who think that any restriction on campaign finance of any kind is wrong, but that has not been what the two major parties have been fighting about in recent years). So all the talk of Citizens United is something of a distraction.

    2. Do you have any evidence to support your contention that most people are unaware of the prohibition on donating through another person (AKA “donation laundering”)? It seems hard to believe this contention: one would have to understand that one’s own contributions are limited (presumably to limit the influence of any single person in a race), but nevertheless believe that it was OK to circumvent the law by having associates donate and then reimburse them for that. That seems very far from intuitive.

    3. Selective prosecution is of course a serious issue. If it is a serious problem in the campaign finance area (I have no idea whether this is so, and the post gives no evidence to convince me), then that might well be a strong argument for scrapping the laws altogether (as the post argues). But it isn’t implausible to me that whenever the government learns of credible evidence of donation laundering, it takes action. When you become a high-profile political commentator, surely your actions will receive more scrutiny, making it more likely that legal violations will come to light. If that explains how Mr. D’Souza has ended up being prosecuted, would you still find it pernicious?

    • Dena K says

      As a conservative, I disagree with the premise behind this article. The article is full of red herrings. D’Souza wasn’t arrested because he made an anti-Obama movie. He was arrested because he made illegal campaign donations. You didn’t make a case that Moore had done the same thing. Moore made a movie, D’Souza made a movie. Neither got arrested for that. Unless you can make a case that Michael Moore was involved in campaign donation laundering, it’s not the same thing. Additionally and more importantly, I get tired of people defending “their side” for breaking the law while wanting to hold the other side accountable. Yes, liberals get away with murder (sometimes literally) but that’s no reason for us to call for letting conservatives off the hook. I don’t want ANYONE trying to buy an election. Not their side, not my side. How can we hold them accountable if we refuse to hold our own accountable? And does it really matter that his breaking the law didn’t result in a bought election? Isn’t it bad enough that he tried? If he wasn’t aware of the $5K limit on donations, why funnel the other donations through other people?

      • PD Quig says

        He said plainly that Michael Moore asserted that his movie was aimed at unseating President Bush and that as an officer of a corporation Moore was forbidden to do so. The author did not claim that what Moore and D’Souza did were the same–you did. He simply claimed that Moore broke the campaign finance laws of the time and was not prosecuted.

        There. That wasn’t so hard, now was it?

    • Jim S says

      I agree that the comparison between Moore and D’Souza is not apt. Just last week I read about an attorney in the midwest who was prosecuted unsuccessfully during the Bush years because he arranged to “bonus” various employees who made contributions to a candidate. The bonuses matched up with the contributions, so it was alleged that this was a scheme to avoid the $5000 individual limit. So it doesn’t seem that the D’Souza prosecution is an outlier.

  2. Brad S says

    1. Right. But the Democrats have been talking non-stop since Citizens United about trying to limit the political speech of their opposition. That’s the point.
    2. My personal experience as an FEC Commissioner. Many people do, in fact, consider fine to reimburse someone else for making a donation.
    3. Yes. The point is that even if Bharara’s prosecution of D’Souza is innocent (and I don’t pretend to know), Democrats have created an environment guaranteed to make it look suspicious – and that’s a problem. Further, reasonable discretion by the US Attorney would have suggested that a routine civil fine would be more appropriate.

    • brock2118 says

      Read the article. It was illegal at the time of Moore’s movie for a corporation to make a campaign movie and the point of the movie was getting rid of Bush. D-Souza made his movie after Citizens United repaired the law. If Citizens United had been struck down the only corporations who could publicly express their views would be media companies like the New York Times.

  3. Jeff J says

    Well written Mr.Smith and well said. What can be done?
    Philip W- Like the one who cannot see the forest for the trees, you are a wonder.
    Brad S- With a little more backbone you could become a man as well as a lawyer.

  4. nobody.really says

    “I have no idea if Dinesh D’Souza is guilty of the alleged campaign finance law violations. One cannot make campaign contributions in the name of another or exceed the legal limit—then $5000—to a candidate in a campaign cycle. But most people are not aware of this restriction….”

    How is ignorance of the law relevant to the question of D’Souza’s guilt?

    • Brad S says

      It’s not. It is, as the post goes on to explain, relevant to the appropriate mode for handling such a matter – as noted, these are usually treated as civil offenses, not criminal. And it is does suggests that this is not a major corruption problem, casting doubt on the allocation of resources in the US Attorney’s office.

      Again, the issue is not D’Souza, and I consider it a failure on my part that this is apparently not clear to many.

      The issue is this: when you set out to vilify and attack your political opposition using the power of government, openly state that you hope to have a “deterrent effect” on their political participation, urge the IRS and other government agencies to investigate your political opposition, and create legal structures – such as campaign finance laws – that are easily abused for partisan purposes, it creates at a minimum the appearance of an abuse of power. It shakes confidence in the government, and it is likely to deter some people from exercising their rights that the government ought to protect, not seek to “deter.” It also suggests that perhaps we should not give every benefit of a doubt to government actors such as US Attorney Bharara or the IRS officials who targeted conservative organizations, but in fact perhaps we ought to look more closely at their activities.

      As I wrote, if you “talk like thugs who want to use the law to silence and intimidate your political opponents, … people might think you are thugs who do use the law to silence and intimidate your political opponents.” And as I further wrote, and some of the comments here I think emphasize, it is a problem that some people seem quite comfortable with that.

  5. libertarian jerry says

    Back during the Stalin years of the old Soviet Union,Stalin’s chief of his secret police was L.Beria. Beria famously said, “you find me the man and I’ll find you the law to hang that same man.” In other words there were tens of thousands of laws on the books in the old Soviet Union that finding any law,no matter how mundane, could easily lead to the arrest,conviction and sentencing of any citizen caught in the judicial web of something as simple of uttering the wrong words. Unfortunately America has descended into this same abyss. The only answer,short of dismantling the IRS and it’s Income Tax, is to educate enough citizens into their right to Jury Nullification. This is what happened 80 years ago when the prohibition period in America was ended mainly because juries often nullified the law by voting for the innocence of bootleggers. Despite what the judge told the juries that said in effect, “don’t judge the laws only the facts.” This “fact judging” only allows corrupt governments,politicians,prosecutors and judges to run ruff shod over citizens who question and challenge the corrupt,un- constitutional and often illegal actions of the political power elites,on all levels, in America. When the power elites,in America, discover that juries will no longer convict people because of bad laws then liberty loving Americans will see a real change.

  6. MikeN says

    Is it known how they came to find out about the offense? Did one of the four talk, or was his bank account being monitored?

  7. ptsargent says

    Look, all these laws restricting contributions to elections are the initiatives of Democrats designed to limit the influence of individuals in the election process and allow the continued voter hegemony of unions which have been privileged since at least the Wagner Act of 1935. Period.

  8. David Johnston says

    So then you believe that anyone who makes a political film or say, writes a political law should be immune from any kind of campaign finance law?

Trackbacks

  1. […] Reality. “Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?” Taking Down D’Souza and Other Abuses of Power […]

  2. […] Reality. “Imagine if fourteen months after the election, Moore had been indicted by a Bush-appointed federal prosecutor for violating the prohibition on corporate spending. Imagine if Moore was arrested, cuffed, criminally charged for his activities, had his passport confiscated, and bail set at $500,000–what would have been the reaction from the America’s liberals? Of the press? Of Senator Barack Obama?” Taking Down D’Souza and Other Abuses of Power […]

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