Jeenah Moon/AP Photo
Nadine Menendez and Sen. Bob Menendez (D-NJ) leave from Manhattan federal court, March 11, 2024, in New York.
New Jersey will certainly have a new senator soon. Sen. Bob Menendez was indicted last year for bribery after Egyptian businessmen provided him with benefits including cash, a luxury car, and literal gold bars in return for political favors for the Egyptian government. This is the second time Menendez has been prosecuted for corruption; he only escaped the first time thanks to a hung jury. As my colleague David Dayen explains, Rep. Andy Kim is likely to win the seat this year after the New Jersey Democratic machine’s attempt to install Gov. Phil Murphy’s wife backfired spectacularly.
Good riddance, in my view, to a senator the Democratic Party should have thrown overboard the first time he was caught with his hands in the cookie jar. But the Menendez story also illustrates a subtle way the Supreme Court’s de facto legalization of corruption interacts with other aspects of the campaign finance system. You see, he has not officially dropped out of the race—and has even floated that he will run as an independent in the general election—because pretending like he’s still a candidate lets him spend his campaign cash on his legal defense.
The context is important here. The sheer comical excess of the Menendez indictment illustrates how rampant political corruption is in this country. The reason people getting nailed by law enforcement for corruption tend to be people with literal gold bars and stacks of cash sewn into their jackets is because of Supreme Court decisions making it impossible to prosecute instances of corruption that are somewhat more deniable. In McDonnell v. U.S., the Court unanimously overturned the conviction of a former Virginia governor and his wife who had set up meetings with officials for a pharmaceutical company while taking valuable gifts from the company’s owner. In FEC v. Ted Cruz for Senate, it ruled that candidates can loan their campaigns money, and then pay themselves back with donor cash after the election is over and the victor is known—effectively opening a window labeled “bribes here.” And in Citizens United v. FEC, of course, they legalized effectively limitless corporate spending in politics.
Partly as a result of these decisions, Washington, D.C., is absolutely awash with people being effectively bribed, morally if not legally. Lobbyists are throwing all kinds of money and gifts around all the time. As a politician, if you behave well in office as a senator or representative, you can expect to be offered all kinds of cushy lobbyist or no-show “consulting” jobs that are actually worth much more than a sack of gold ingots. And of course, the justices of the conservative Court majority themselves, as ProPublica has shown, have been gleefully wallowing in an ocean of right-wing billionaire cash like pigs in muck.
So while Menendez was doing the kind of idiotic corruption that actually may have run afoul of the remaining shreds of anti-corruption law, now he is taking advantage of a more subtle variety: spending his campaign money on his legal bills. Should he actually contest the Senate election this year, he is absolutely certain to lose—a recent poll found him with 75 percent disapproval among New Jersey residents—and he’s already given up on seeking re-election as a Democrat. But pretending to be running allows him to spend his remaining campaign funds on his legal defense. Just between October and December last year, he spent $2.3 million out of his campaign coffers on legal fees. And as of the end of December, there’s still another $6.2 million in that account.
Partly as a result of the Court’s decisions, Washington is absolutely awash with people being effectively bribed, morally if not legally.
This is all apparently aboveboard. As the Federal Election Commission explains, candidates can’t use their campaign money for personal use, which “means any use of funds in a campaign account of a present or former candidate to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or duties as a Federal officeholder.” Since a politician engaging in corruption in office by definition would not happen without being elected first, it must not be personal!
In other words, if you get in a bar fight and are charged with assault, you can’t spend campaign funds on your defense. But if you’re charged with selling your Senate vote to the highest bidder, you typically can. As a D.C. Circuit Court decision written by none other than Merrick Garland concludes: “[T]wenty years of advisory opinions have concluded that legal expenditures made in response to charges of campaign or official misconduct are not personal; expenditures to rebut allegations of personal misconduct are.”
Menendez’s campaign fundraising has of course collapsed since the indictment; instead, he has set up a legal defense fund while he drains the campaign account. But he can still use those accumulated prior contributions for this purpose, and it’s not a little bit of money. Our old friend George Santos, who recently announced he would also run as an independent in a bid to return to the seat he was expelled from under a cloud of corruption, can also use the tiny bit left in his campaign account for legal defense.
Few want to waste good bribe money on somebody whose political career is over and who likely will be in prison soon. But there’s another much more prominent example of someone using the campaign finance system to help pay for their vast legal expenses: Donald Trump.
For instance, just in 2023 he spent some $55 million on legal fees, 84 percent of which came from his Save America PAC. This is a leadership PAC, which can only raise $5,000 per election cycle from individuals—but leadership PACs can take unlimited sums from super PACs created by the Citizens United decision, and super PACs themselves can raise unlimited sums.
Sure enough, the Trump-supporting super PAC MAGA Inc. has been giving Save America millions of dollars per month. Meanwhile, Trump’s joint fundraising committee is routing small-dollar donations into Save America until they hit the $5,000 limit, after which they will go to the Republican National Committee. The RNC in turn was recently taken over by Trump stooges, almost certainly so as to direct its resources to Trump’s defense. And while Trump’s fundraising is somewhat lackluster compared to prior elections, it has not collapsed, in part because sundry rich people think they’ll be able to purchase whatever policy they want by dropping cash on his head by the C-130-load (assuming he wins).
On one level, it’s quite funny that Trump’s multitude of criminal prosecutions has resulted in him cannibalizing nearly the entire Republican Party fundraising apparatus during an extremely high-stakes election year. But on another, it’s a truly awesome example of the corruption that saturates American politics, thanks to the Supreme Court. They have opened the floodgates to corruption on the part of our elected representatives, and in the case of even worse crimes they haven’t reversed by judicial fiat (yet), provided many sluices through which God-knows-who can flood money into the pockets of the accused to give them the best chance of evading accountability.
This isn’t a theoretical question, either. Thanks in part to his expensive legal representation, Trump has potentially pushed off all his federal felony prosecutions so there will not be any verdicts before the election. (He also recently changed his tune on the question of banning TikTok after a large donation from the right-wing billionaire Jeff Yass, who has an enormous stake in the company.)
Perhaps what we need to do is pass the hat citizen to citizen and offer Clarence Thomas and Sam Alito the proceeds should they resign from the bench. For just 20 bucks per American, we could offer them both a cool $3.3 billion. Who’s with me?
