Conservative former Congressman Steve Stockman is languishing in prison with COVID-19. Some crooked bureaucrats at the Bureau of Prisons will not allow him to move to home confinement, despite the fact he is over 60 years old and has diabetes and other health problems. Every other inmate in his prison over 60 with diabetes has been moved to home confinement. He has heard they won’t allow it because he’s basically a conservative political prisoner. Meanwhile, murderers and rapists all around the country have been let out, with some committing new heinous crimes.
Stockman is serving a 10-year sentence for raising money for conservative nonprofits where he didn’t completely finish the work he’d said the nonprofits would do. This prosecution has terrified conservative nonprofits all over the country. Richard Viguerie, L. Brent Bozell III, several former members of Congress and other prominent conservative nonprofit leaders filed an amicus curiae brief in his appeal in May 2019. Unfortunately, the Fifth Circuit Court of Appeals failed to reverse his convictions, so Stockman is now asking the Supreme Court to hear his case.
Many of the same nonprofit leaders and a few others associated with them (including myself) just signed on to an amicus curiae brief from American Target Advertising, written by Richard Viguerie’s attorney Mark Fitzgibbons, supporting Stockman’s petition. They lay out three clear areas of abuse in Stockman’s case.
First of all, the lower courts bizarrely applied a law regarding broadcast communications to Stockman’s print mailers. That law, which was laid out in McConnell v. FEC, said broadcast communications — namely TV ads — are the same as "express advocacy" when ran within 30 days of a primary or 60 days of a general election. The lower courts said that Stockman did this by illegally coordinating with a nonprofit to excessively contribute to his senatorial campaign through a print publication. Not only is the broadcast communications law inapplicable to the nonprofit’s mailers, but Stockman did not engage in “express advocacy” in his mailers because there were no key words like “vote for” or “defeat” in it. The mailer merely pointed out some negative things about his opponent. So it was not a contribution to his campaign. Only by a tortured interpretation of the law was the government able to make Stockman look guilty.
Secondly, the amicis were troubled that the government never proved Stockman had intent to defraud. The two donors he solicited were told exactly how the money was to be used, mainly to send out a mailer, create a monograph and set up a conservative youth training program. Stockman told one of the donors he would send out mailers to 830,000 people. He mailed less than 830,000. That is intent to defraud? There are all kinds of reasons why the full number of mailers were not sent out. The printers could have been overbooked, the names and addresses of the recipients may not have been available in time, the projected cost may have not been high enough, etc.
Richard Viguerie pioneered political direct mail in the mid-to-late 1970s, so it is significant that he is behind this amicus curiae. The amicis warn, “By concluding there was fraud here, the Fifth Circuit’s lack of exacting examination of intent at the time of solicitation would make everyday flexibility of how nonprofits spend their money on projects, everyday logistics of direct mail, or even common failures in nonprofit projects the equivalent of ‘intentionally misleading statements designed to deceive the listener,’ articulated under the standards” by clear Supreme Court precedent.
Thirdly, the jury instructions were misleading. They never mentioned that 501c3s and 501c4s (nonprofits) may engage in politics, which many do all the time. 501c3s can participate in a limited number of political activities, including providing voter education guides — just like one of Stockman’s intended mailers. 501c4s can engage in even more activities, including partisanship and ironically — a fair amount of express advocacy. If the jury had been told the types of political activities nonprofits can legally engage in, they likely would not have had a problem with the projects. Instead, they were led to believe nonprofits can only engage in education and charity.
Perhaps most ridiculous of all, the Fifth Circuit opinion criticized Stockman for spending “thousands on personal goods, including airline tickets, fast food, and gasoline” that he “repurposed” from the nonprofits. Well he didn’t repurpose the funds. He was paid a legitimate salary from the nonprofits, which was all prior to serving in Congress. What he spent his salary on is his own business. The amicis warn, “If the Fifth Circuit’s shotgun criminalization of expenditures on ‘airline tickets, fast food, and gasoline’ were to be left unchecked, paid fundraisers, nonprofit executives, and candidates for office best be wary of making such common expenditures.”
Stockman was targeted because he was an outspoken conservative Congressman. He called for the arrest of Lois Lerner, the impeachment of Eric Holder and blocked many of Barack Obama’s bills. It took four grand juries until one would finally indict him, which says a lot since a good prosecutor can get a jury to indict a ham sandwich. The government’s own witness, Ben Wetmore, said Stockman was innocent after the trial, "I was a key FBI witness and, as an attorney who reviewed the case and the allegations made against Stockman, I carry the burden of knowing that he's completely innocent." He says it was a “show trial — a real-life, Soviet-style prosecution.” The Supreme Court needs to accept this case, correct this wrong that has been done to Stockman and reverse this terrifying new precedent.