In a famous scene from Casablanca, the corrupt but lovable police Captain Renault storms into Rick’s Café Americain to shut the place down, remarking, “I am shocked-shocked-to find that gambling is going on in here!”, while the croupier hands him his winnings.
A sizable group of Democratic politicians—including Hillary Clinton, Marty Walsh, Elizabeth Warren, Edward Markey and Joseph Kennedy III—have taken a page out of Renault’s book, expressing “shock” at the latest revelation from The Boston Globe’s Spotlight team: that Boston’s Thornton Law Firm had reimbursed the firm’s partners for political donations individual partners had made to Democratic candidates totaling $1.6 million over the past three years.
The heart of the campaign contributions scenario, as reported by the Spotlight Team, was that the firm, which was prohibited by law from making contributions in its own name and with its own money, simply doled out the firm’s money to three partners, each of whom made the contributions in his own name, thus hiding the firm’s ownership of the donated funds. A federal criminal probe is ongoing, and Massachusetts Office of Campaign and Political Finance director Michael Sullivan recently announced he would ask state Attorney General Maura Healey to consider state criminal prosecution.
Thornton, which makes a tidy living litigating mass personal injury and similar cases, is a big financial player in Democratic politics. Mass personal injury lawyers are well known for their opposition to tort law reform that would likely reduce their big litigation paydays. It does not much matter, however, why the firm contributed so much to these largely Democratic candidates, although it is easy enough to come up with theories based on financial self-interest. However, all such motives for political donations, whether they be ideological or economic, are equally lawful in a free capitalist society.
Indeed, such political contributions are more than merely lawful. They are constitutionally protected. The Supreme Court, in major decisions in 2010 and 2014, held that political campaign contributions are a form of political speech and hence are entitled to broad First Amendment protections. Governmental restrictions must be narrow and directed at specific abuses.
The outcome of the Thornton investigation and any prosecutions would turn essentially on a rather simple legal point on which the law firm likely has the better argument. Thornton’s attorney Brian Kelly argues that this is not a case where the firm has illegally hidden the origins of the political contributions, nor one where laundered funds come from unlawful sources. The contributions, Kelly points out, were made in the names of the individual partners, and, crucially, were debited against each partner’s respective equity interest in the firm. This means that to the extent that a contribution was made in the name of a particular partner, that partner’s ownership share of the firm’s assets was diminished to the extent of the contribution.
In other words, these were personal, not partnership donations. As such, they were legal. No amount of investigative reporting by the Globe nor prosecution referrals to Attorney General Healey would make it otherwise. Nor would the United States Attorney’s Office, which in recent years has created its own cottage industry seeking to transmogrify distasteful but lawful elements of state and local political culture into alleged “political corruption” felonies, likely have any success in putting Thornton’s partners into prison.
The only wrinkle in Kelly’s otherwise iron-clad defense might involve some messy paperwork concerning the accounting method by which a contributing partner’s account was charged, and the timing, for that partner’s political donation. However, as long as a partner’s share of the firm’s assets was ultimately diminished by the amount of his political contributions, that partner would have a very strong, perhaps insurmountable defense to any criminal charge that the source of the contributions was illegally disguised.
As soon as the proverbial mud (or other substance) from the Globe’s initial story hit the fan, a veritable army of pols loudly proclaimed that they would either be returning the contributions or donating them to charity. Congressman William Keating is so far the only member of the Massachusetts delegation who is not planning to immediately surrender the contributions. Demonstrating a level of independence and free thinking rarely found among politicians today, his office announced, as reported in the Globe, that he would not return the more than $30,000 he received from Thornton lawyers unless it is “determined that the donations were illegal.” I suspect that, when the dust settles and either the grand-standing investigations or almost certainly ill-fated prosecutions are over, Keating will be able to keep the dough.
Mind you, The Boston Globe investigative reporters and the Center for Responsive Politics have done a public service by showing us that the Thornton partners or, as the Globe sees it, the Thornton firm has sought to grease the wheels of the political system in the quest for favorable action on legislation that might impact the firm’s wildly successful mass personal injury law practice.
But media disclosure of how big-dollar political donors can dress-up the collective origins of the money, while being a vital public service, is not the equivalent of spotting the commission of a crime. Indeed, when it comes to the campaign finance laws, it is often the law, as Dickens might say, that “is an ass, a[n] idiot.” Congress (even while having its hand out at election time) seeks to restrict such contributions as if they were bribes, while the Supreme Court, recognizing that campaign money is the equivalent of political speech, narrows or knocks down the restrictions.
It is time for us to stop equating the two. Exposing the role of big money in politics serves a salutary purpose even when there are no crimes involved. Civil libertarians believe – as should journalists – that sunlight can be the best disinfectant even when prison does not result from political exposés.
In Another Matter
This is not to say, however, that the Thornton firm is entirely out of the woods. The real cloud hanging over its head has nothing to do with political contributions. Instead, as the Globe’s Andrea Estes reported in a less breathless but more convincing article on February 7th, Senior U.S. District Judge Mark L. Wolf has ordered an independent review of legal bills submitted to the court by the firm in a settled class action lawsuit recently resolved between the parties. Typically, the prevailing law firm’s bills are paid out of the money won. The amount of the firm’s court-awarded fee depends heavily upon its submission of a statement listing which lawyers worked on the case and how many lawyers’ and other staffers’ hours the case consumed.
In response to Judge Wolf’s order for an independent review of the legal bills in question, some firms, including Thornton, have already admitted to “inadvertent errors” such as double billing some of the hours submitted. The firms have already agreed to deposit $2 million, at the judge’s request, to fund the investigation of their actions. The Globe might yet get its quarry, but it’s not likely to involve violations of the complex and constitutionally questionable campaign financing laws.
(The author thanks research assistants Rachel Davidson and Nathan McGuire for their assistance.)