In 2010, U.S. Senator Harry Reid was up for re-election. One of his best friends, a wealthy developer named F. Harvey Whittemore, gave gifts to 29 individuals in his family and his circle of friends, of $5,000 each. Whittemore then asked each of the recipients to please donate $4,600 to Harry Reid’s re-election campaign, and they each complied. In 2012 he was indicted for violating federal campaign laws. He was convicted in 2013 and he is appealing his conviction to the Ninth Circuit.

One of his defenses in his opening brief to the Ninth Circuit is that campaign contribution limits to candidates are unconstitutional. His brief says that it makes no sense that it is legal for anyone to contribute as much as desired to a PAC that makes independent expenditures on behalf of a candidate, and yet illegal for the same individual to make direct campaign contributions. The brief says that direct campaign contributions provide more transparency, because a donation to a candidate is reported to the public quickly, whereas a donation to a PAC won’t be revealed to the public until tax filings made the year after the donation.

Whittemore was required to file his opening brief on April 2, the very day that the U.S. Supreme Court released its opinion in McCutcheon v FEC. Whittemore had already received three extensions of time in which to file his opening brief. Therefore, his brief does not discuss McCutcheon, except to mention that the opinion had just been released. Any argument about whether the McCutcheon decision affects Whittemore’s argument will certainly be presented in supplemental briefs. The case is Whittemore v USA, 13-10515. Thanks to Rick Hasen for the news about this case.