Convicted former top KY Democrat makes a case for U.S. Supreme Court consideration
A month after he reported to prison, prominent Kentucky businessman and former Kentucky Democratic Party chief Jerry Lundergan has asked the U.S. Supreme Court to consider overturning his conviction for illegally funneling $200,000 to his daughter’s political campaign in 2014.
Lundergan petitioned the nation’s top court to review records from the criminal case that he lost in the U.S. 6th Circuit Court of Appeals.
The petition states that the federal ban on corporate contributions is unconstitutional when applied to contributions from a close family member, as Lundergan gave the money to his daughter Alison Lundergan Grimes in her 2014 challenge against Sen. Mitch McConnell. Grimes, a Democrat, was a two-term secretary of state serving from 2012 to 2020.
The prosecution argued successfully in the initial trial and in Lundergan’s appeal at the U.S. 6th Circuit that he and veteran political consultant Dale Emmons knew what they were doing in skirting the law.
Prosecutors presented evidence that Lundergan and Emmons used misleading or vague invoices to conceal the spending and that Lundergan also engaged in improper spending to support Grimes’ 2011 and 2016 races for secretary of state.
The nation’s highest court doesn’t have to accept Lundergan’s petition. If it does, the ruling could loosen legal restrictions on campaign finance laws nationwide.
Rick Hasen, professor and Co-Director of the Fair Elections and Free Speech Center at the University of California, Irvine, wrote that it could justify an erosion of the federal ban on corporate contributions. He added that Supreme Court justices with a distaste for regulation could jump at the opportunity.
“It presents a specific set of sympathetic facts (here, the corporation is closely held, and the money went from the corporation controlled by the father to the candidate daughter) to make a much larger hole in campaign finance laws (to blow up the contribution limits applicable to corporations generally),” Hasen wrote. “This is catnip for some of the more anti-regulatory justices.”
He also compared elements of the case to that of the landmark Citizens United, a Supreme Court decision that greatly weakened federal limits on campaign spending.
Josh Douglas, an election law professor at the University of Kentucky College of Law, said that he thought there was a “pretty good chance” the court will take Lundergan’s appeal.
“While predicting what the Court will do is never an exact science, I think there’s a pretty good chance the Court takes the case,” Douglas wrote. “And if they do and overturn the conviction, it could be a narrow opinion that only applies to closely held corporations or a broader one that guts contribution limitations. Either way it would be a further step in deregulating campaign finance. “
The case also has some big name attorneys in state and national legal circles behind it, which Hasen noted could bode well for its likelihood of coming before the Supreme Court.
Hasen said that the involvement of Supreme Court regular Kannon Shanmugam will earn the petition “a close look” from the Supreme Court. The 49-year-old attorney is lead counsel on the petition; Shanmugam has argued 32 cases before the Supreme Court and his name has even been floated for openings on the nation’s highest court.
Frankfort Attorney J. Guthrie True is the only Kentucky attorney listed in the petition. True has long been Lundergan’s attorney. He said there’s good reason to “believe and hope” that the Supreme Court might take an interest in the applicability of the corporate contribution ban.
In particular, True emphasized that he believes the prosecution had to have thoroughly proven ‘quid pro quo’ corruption, meaning that Lundergan would have received something from his daughter in exchange for the money he funneled to her campaign.
“Our point is that a complete ban on corporate contributions flies in the face of Supreme Court precedent,” True said. “Particularly in circumstances like this where there was no indication, no evidence, no insinuation whatsoever that the ‘contributions’ that were in question in this case were motivated by quid pro quo corruption.”
True said that the federal government’s response to the petition, which he said will likely be in opposition, has a 30-day deadline. Same goes for amicus briefs, or ‘friend of the court’ briefs from outsiders in support of the petition, though he said both those deadlines are regularly extended.
Senator McConnell, once an opponent of Lundergan’s daughter, has long argued for fewer regulations on money in politics. The minority leader has said that political contributions are a practice protected by the First Amendment’s right to free speech.
McConnell’s office did not provide a response to a request for comment on the petition by press time.
Herald-Leader reporter Bill Estep contributed to this article.
This story was originally published December 30, 2021 at 11:39 AM.
