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RENO, Nev. (AP) — Federal prosecutors asked a judge on Thursday to order ex-Nevada lobbyist Harvey Whittemore to begin serving his two-year prison sentence for breaking campaign finance laws on the heels of a major U.S. Supreme Court ruling that government lawyers say undermines his appeal before the 9th U.S. Circuit Court.
Whittemore's lawyers argued that, to the contrary, the high court's ruling on Wednesday further bolsters his claim that the campaign-spending limits he was convicted of violating by funneling more than $130,000 to Sen. Harry Reid's campaign are an unconstitutional violation of his First Amendment right to free speech.
U.S. District Judge Larry Hicks originally ordered Whittemore to begin serving his sentence on Feb. 1, but Hicks later agreed to allow him to remain free for now because the case the justices ruled on Wednesday — McCutcheon v. Federal Election Committee — was pending and could have ramifications for his appeal.
The two sides have dramatically different takes on whether, in fact, it did or did not have ramifications.
Both sides agree the Supreme Court found unconstitutional the current limit on the total, aggregate amount of money an individual can give various candidates in an election.
But Dan Bogden, U.S. attorney for Nevada, said in a motion filed in district court in Reno late Thursday that the justices clearly upheld limits on individual contributions to individual candidates. He said that means the law Whittemore broke still stands.
"The court granted Whittemore's motion for release pending appeal based on (the) possibility that the Supreme Court 'could rule in a broad fashion which may be favorable to Whittemore's appeal,' " Bogden wrote. "That possibility now extinguished, the government respectfully requests that the court reconsider and vacate its order granting release pending appeal, and set a date for Whittemore to surrender to begin serving his sentence."
Whittemore's lawyers countered that while the 5-4 decision in McCutcheon vs. FEC did not specifically address the individual limits, 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.
"The court appears poised to revisit the distinction first drawn in Buckley v. Valeo between campaign expenditures and campaign contributions," Whittemore lawyer Dominic Gentile wrote in a motion filed late Wednesday with the 9th Circuit in San Francisco.
He points to a concurring opinion accompanying the majority ruling in which Supreme Court Justice Clarence Thomas specifically advocated overturning the Buckley v. Valeo decision that upheld contribution limits.
"Contributions and expenditures are simply two sides of the same First Amendment coin, and our efforts to distinguish the two have produced mere word games rather than any cognizable principle of constitutional law," Thomas wrote.
"This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment," he said.
Whittemore once headed a billion-dollar real estate company based in Sparks and pulled the strings of state politics as a prominent lobbyist for more than a decade.
He's appealing his conviction last year for skirting contribution limits in 2007 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 FEC.
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 lawyers say it's clear 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.
It wasn't immediately clear how soon Hicks would act on the motion. The government has until May 2 to file its initial briefs with the 9th Circuit.
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