John Edwards verdict could become part of Citizens United backlash

If 12 North Carolina jurors decide that former vice presidential nominee John Edwards is guilty of campaign fraud, it could be widely seen as part of a growing rumble of populist discontent with the Supreme Court’s 2010 Citizens United ruling, which made it easier for interest groups to raise money to influence campaigns.

It’s an open question whether the charges against Mr. Edwards – six felony counts including conspiracy and receiving illegal donations – would even be brought in the post-Citizens United world. Some experts say the nearly $1 million paid by donors to hide Edwards’s pregnant mistress from the press and his wife could today be moved in legal ways under the new rules, which simply require that there is no direct coordination between candidate and interest groups called "super PACs."

But while Citizens United is not part of the Edwards case – the Supreme Court's 5-to-4 decision came after the events at issue took place – the trial has dealt with those issues of influence and coordination that are central to Citizens United. As a result, the verdict could help shape the mounting debate about how unchecked money can corrupt the political process, and whether the Supreme Court should revisit – and perhaps tone down – its ruling. 

“Linking the Edwards case directly to Citizens United I think is stretching it, but I do think this case will become part of this growing tapestry of campaigns and money where you see that [Americans] do want to set limits for politicians, and they do want to take away the curtain – they don’t want 'The Wizard of Oz' any longer,” says Steven Friedland, a former federal prosecutor who’s attended parts of the trial in Greensboro, N.C.

In some ways, the issue at the core of the Edwards trial is just as relevant today as it was before Citizens United: Did Edwards coordinate the donations to save his ultimately failed bid to become the Democratic presidential nominee in 2008, or did the donors, Listerine heiress Rachel “Bunny” Mellon and the late Texas lawyer Fred Barron, simply making a gift at the request of others to help Edwards?

The jury can acknowledge multiple motivations behind the donations and still find Edwards guilty, Judge Catherine Eagles said in her instructions. That fact, along with the jury requesting office supplies like pens and poster board on Tuesday with which to parse the evidence, suggests that “they’re picking their own way up the mountain,” says Mr. Friedland, currently a law professor at Elon University in North Carolina.

Activists and lawmakers driving a backlash against Citizens United could seize upon a guilty verdict to add to their momentum. 

This week, 22 state attorneys general filed a legal brief supporting Montana's attempt to defend its local campaign-financing laws. A federal judge in Montana, citing Citizens, recently struck down a 100-year-old state law that limited independent campaign contributions. Defenders of campaign finance hope the Supreme Court might take the case to tweak Citizens.

The state is “facing an onslaught of secretive [groups] … trying to influence our elections while hiding being a curtain of anonymity,” John Doran, a spokesman for the Montana attorney general’s office, told the National Law Journal.

Sen. John McCain (R) of Arizona, whose landmark McCain-Feingold campaign finance legislation was in large part nullified by Citizens United, added another brief in support of the Montana attorney general. He pushing back on Supreme Court Justice Anthony Kennedy's assertion, in Citizens, that money does not "give rise to corruption or the appearance of corruption." 

"A problem does exist" where "so-called independent expenditures create a strong potential for corruption and the perception thereof," Senator McCain wrote.

According to polls, Americans are growing increasingly disenchanted with the proliferation of Citizens United-inspired super PACs – groups independent from candidates that can raise unlimited funds, which can be used to influence campaigns. In a Washington Post/ABC News poll conducted in March, nearly 70 percent of registered voters said they’d like to see super PACs banned.

“The extremes of Citizens United and the extremes of John Edwards may be equally condemned, but navigating toward the middle is difficult in today’s rhetoric-filled debate,” says Friedland.

After a 17-day trial, the defense said in closing arguments Thursday that Edwards committed sins, but no crimes. The prosecution argued that Edwards ignored his own “two Americas” campaign rhetoric by willfully corrupting federal campaign rules intended to level the playing field between individual voters and moneyed interests.

The jurors – a racially diverse mix of four women and eight men, including a financial analyst, a corporate vice president, a retired railroad engineer, and three mechanics – began their fourth day of deliberations on Wednesday, asking for copies of several exhibits from the trial.

To some observers, the weight of being arbiters of federal campaign law has begun to show on their faces.

Raleigh News & Observer correspondent Anne Blythe compared the jurors at the end of the trial – “a collegial group, laughing and talking” – to the way they appeared in court this week, where she described them as “somber-looking, barely looking at prosecutors or Edwards” as they waited for the judge to release them for lunch.