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United States Court of Appeals for the Ninth Circuit Case: 09-50296 09/21/2009 Page: 1 of 30 DktEntry: 7067804 RECORD NO. 09-50296 In The United States Court of Appeals For The Ninth Circuit UNITED STATES OF AMERICA, Plaintiff – Appellant, v. PIERCE O’DONNELL, Defendant – Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA AT LOS ANGELES BRIEF OF AMICUS CURIAE CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON IN SUPPORT OF REVERSAL Melanie Sloan CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 I Street, N.W., Suite 450 Washington, D.C. 20005 (202) 408-5565 Counsel for Amicus Curiae Case: 09-50296 09/21/2009 Page: 2 of 30 DktEntry: 7067804 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. 26.1, amicus curiae Citizens for Responsibility and Ethics in Washington submits this corporate disclosure statement. (a) Citizens for Responsibility and Ethics in Washington does not have a parent company, and is not a publicly-held company with a 10% or greater ownership interest. (b) Citizens for Responsibility and Ethics in Washington (CREW) is a nonprofit, non-partisan corporation, organized under section 501(c)(3) of the Internal Revenue Code. Through a combined approach of research, advocacy, public education, and litigation, CREW seeks to protect the rights of citizens to be informed about the activities of government officials and to ensure the integrity of those officials. CREW has an interest in ensuring that the American public can discover the true source of elected officials’ campaign funds. i Case: 09-50296 09/21/2009 Page: 3 of 30 DktEntry: 7067804 TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ..........................................................i TABLE OF CONTENTS.......................................................................................... ii TABLE OF AUTHORITIES ....................................................................................iv STATEMENT OF INTEREST..................................................................................1 STATEMENT OF ARGUMENT..............................................................................2 I. THE DISTRICT COURT RULING IS A RADICAL DEPARTURE FROM THE WELL-SETTLED MEANING OF 2 U.S.C. § 441f THAT SERIOUSLY ENDANGERS ENFORCEMENT OF FECA................................................................3 II. THE LEGISLATIVE HISTORY OF FECA DEMONSTRATES CLEARLY THAT CONGRESS INTENDED SECTION 441f TO PROHIBIT REIMBURSEMENTS TO CONDUIT CONTRIBUTORS .................6 III. THE DISTRICT COURT’S INTERPRETATION IS CONTRARY TO ALL PRIOR AUTHORITATIVE INTERPRETATIONS OF THE ACT.................................................12 IV. TWENTY-TWO STATES HAVE INCORPORATED THE LANGUAGE OF SECTION 441f INTO THEIR CAMPAIGN FINANCE LAWS AND HAVE INTERPRETED IT TO PROHIBIT REIMBURSEMENTS TO CONDUIT CONTRIBUTORS ..............................................................................14 V. THE LOWER COURT FAILED TO DEFER ADEQUATELY TO THE FEDERAL ELECTION COMMISSION’S INTERPRETATION OF THE LANGUAGE OF SECTION 441f......................................................................................................16 ii Case: 09-50296 09/21/2009 Page: 4 of 30 DktEntry: 7067804 CONCLUSION........................................................................................................18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE iii Case: 09-50296 09/21/2009 Page: 5 of 30 DktEntry: 7067804 TABLE OF AUTHORITIES Page(s) CASES Arizona Health Care Cost Containment System v. McClellan, 508 F.3d 1243 (9th Cir. 2007) .......................................................................17 Barnhart v. Walton, 535 U.S. 212 (2002).......................................................................................17 Buckley v. Valeo, 424 U.S. 1 (1976).............................................................................................8 California Medical Ass’n v. Federal Election Comm’n, 641 F.2d 619 (9th Cir. 1980) .........................................................................18 Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)...............................................................................3, 17, 18 Federal Election Comm’n v. Furgatch, 869 F.2d 1256 (9th Cir. 1989) ................................................................. 17-18 Federal Election Comm’n v. Ted Haley Congressional Comm., 852 F.2d 1111 (9th Cir. 1988) .......................................................................18 Feiger v. Gonzales, 2007 WL 2351006 (E.D. Mich. Aug. 15, 2007), aff’d, 542 F.3d 1111 (6th Cir. 2008) ................................................................. 13-14 Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) .......................................................................13 Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993).......................................................................................17 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).......................................................................................17 iv Case: 09-50296 09/21/2009 Page: 6 of 30 DktEntry: 7067804 Latchem v. State, No. A-6417, 1999 WL 587238 (Alaska Ct. App. August 4, 1999)...............15 Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) ..........................................................................13 Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) .........................................................................17 Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951).........................................................................................8 State v. Azneer, 526 N.W.2d 298 (Iowa 1995)........................................................................15 State v. Palmer, 810 P.2d 734 (Kan. 1991)..............................................................................15 United States v. DeLoach, No. 06-20583-CR-KING-001 (S.D. Fla. July 17, 2007).................................4 United States v. Fannon, No. 3:08-cr-00043-nkm (W.D. Va. May 19, 2009) ........................................4 United States v. Geneske, No. 2:09-cr-00435-SDW (D. N.J. June 11, 2009)...........................................3 United States v. Hankin, 607 F.2d 611 (3d Cir. 1979) ..........................................................................13 United States v. Hsia, 176 F.3d 517 (D.C. Cir. 1999).......................................................................13 United States v. Johnston, 2008 WL 2544779 (E.D. Mich. June 20, 2008) ............................................13 United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999).....................................................................13 v Case: 09-50296 09/21/2009 Page: 7 of 30 DktEntry: 7067804 United States v. Noe, No. 3:05cr796-01 (N.D. Ohio Sept. 13, 2006) ................................................4 United States v. O’Donnell, No. CR-08-00872-SJO (C.D. Cal. June 8, 2009) ............................................2 United States v. Pierce-Santos, No. 1:09-cr-00014-EGS (D. D.C. June 3, 2009).............................................3 United States v. Trie, 23 F. Supp. 2d 55 (D. D.C. 1998)..................................................................14 STATUTES 2 U.S.C. §§ 431 through 455 .....................................................................................2 2 U.S.C. § 437g(a)(5)(B) .........................................................................................10 2 U.S.C. § 437g(d)(1)(D)(i) .....................................................................................10 2 U.S.C. § 437g(d)(1)(D)(ii)....................................................................................10 2 U.S.C. § 441f..................................................................................................passim 18 U.S.C. § 614..........................................................................................................9 10 Ill. Comp. Stat. 5/9-25.........................................................................................15 Ala. Code § 17-5-15.................................................................................................15 Alaska Stat. § 15.13.074(b)......................................................................................15 Ariz. Rev. Stat. §16-907 ..........................................................................................15 Cal. Gov’t Code § 91079(c).....................................................................................15 D.C. Code Ann. § 1-1131.01(e)...............................................................................15 Del. Code Ann. tit. 15, § 8006 .................................................................................15 vi Case: 09-50296 09/21/2009 Page: 8 of 30 DktEntry: 7067804 Fla. Stat. ch. 106.08(5)(a) ........................................................................................15 Haw. Rev. Stat. § 11-202 .........................................................................................15 Ind. Code § 3-14-1-11..............................................................................................15 Internal Revenue Code § 501(c)(3)............................................................................1 Iowa Code § 68A.502 ..............................................................................................15 Kan. Stat. Ann. § 25-4154(a)...................................................................................15
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