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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
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Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: bribery
Politicker: “Moments ago, U.S. Attorney Preet Bharara’s office announced yet another New York State elected official, Bronx Assemblyman Eric Stevenson, has been arrested and accused of taking bribes. Earlier this week, New York’s political world was rocked when corruption charges were leveled against State Senator Malcolm Smith and Councilman Dan Halloran. Mr. Stevenson’s charges will be formally unsealed at noon today. ‘Stevenson is accused of taking bribes in exchange for official acts, which included drafting, proposing, and agreeing to enact legislation that would benefit the co-defendants’ businesses,’ the release announcing the press conference declared.”
Is this what Frank Sinatra meant, in referring to New York, as “Hey Number One!”
NYT: “A federal law used to prosecute corrupt politicians lost some of its teeth when the Supreme Court significantly narrowed its scope in 2010. But in New York, the law governing theft of ‘honest services’ seems to be alive and well, if recent cases are any clue.”
- Rich Candidates Are Not the Solution
Sheila Krumholz, Center for Responsive Politics
- There Is Very Little Corruption in U.S. Politics
Stephen K. Medvic, author, “In Defense of Politicians”
- The Rich and Their Feedback-Free Bubble
Jack White, The Root
- Self-Funded Campaigns Have Bad Track Records
Eric M. Uslaner, author, “Corruption, Inequality, and the Rule of Law”
- It’s Better to Focus on How Best to Stop Corruption
Meena Bose, Hofstra University
WaPo: “A federal grand jury in Miami is investigating Sen. Robert Menendez (D-N.J.), examining his role in advocating for the business interests of a wealthy donor and friend, according to three people aware of the probe.”
Nonprofit Law Prof Blog: “When does improper campaign intervention become a crime? At the least, there has to be an instance of campaign intervention. But is that all? According to a federal information to which the defendant is set to plead guilty, the answer is ‘yes’ surprisingly. A short but interesting story in yesterday’s Wapo describes a federal information in which the crime is hard to find.”
Bloomberg BNA: “The legal standard to prove a ‘willful’ violation of campaign finance laws is being debated by federal prosecutors and defense lawyers in a major criminal case, with the Justice Department being accused of backing away from a standard used previous cases and enshrined in DOJ guidelines. The legal battle was revealed in recent court filings in the long-running case, which involves Virginia businessmen William Danielczyk and Eugene Biagi. The two are charged with funneling illegal corporate contributions to the 2008 presidential campaign of Hillary Clinton, now President Obama’s secretary of state.”
AP: “The Supreme Court is leaving in place the corruption conviction of a former Louisiana congressman who hid money from bribes in his freezer. The justices on Monday rejected without comment an appeal by former Rep. William Jefferson, who is serving a 13-year term in federal prison.”
The Birmingham News reports.
The Continuing Need for Supreme Court Clarification of the Line Between Campaign Contributions, Legitimate Political Activity, and Bribes
The well-known federal district judge, Myron Thompson, recently finished presiding over one of the largest and most important recent trials in which the Department of Justice’s Public Integrity Section sought to convict numerous state legislators and campaign contributors of federal bribery based on campaign contributions. Judge Thompson then issued yesterday a 33-page opinion, as Rick Hasen noted, in which he showed how complex and confusing current law is regarding the boundary between legitimate contributions and criminal bribes; after working through this maze, he then explained why he had decided the particular jury instructions he gave were his best effort to sort through this body of law. This extensive and thoughtful opinion is significant for two reasons.
First, Judge Thompson’s opinion concludes with this line, which reflects a plea from lower court judges (and many others) for Supreme Court intervention to clarify the law in this important area: “Ultimately, the Supreme Court needs to address this issue and provide guidance to lower courts, prosecutors, politicians, donors, and the general public.” Coming from a judge who has just presided over a major case involving these issues, that’s a powerful statement about the legal confusion that exists in an area of such significance to the democratic process. This statement makes it all the more disappointing that the Supreme Court, just a month ago, denied certiorari in the most significant recent case that raised exactly these issues: the criminal conviction of former Governor Siegelman, of Alabama. Indeed, if Judge Thompson’s opinion and plea for guidance from lower court judges had been issued while Siegelman’s petition had still been pending, one wonders whether this confirmation of the need for Supreme Court clarification would have been enough to tip the scales and push the Supreme Court to have taken the Siegelman case. (Full disclosure: I filed an amicus brief in support of Siegelman’s cert. petition).
Second, the case over which Judge Thompson presided has gotten far less national attention than it warrants. The case, known as McGregor, involves another dramatic failure of the Department of Justice, particularly the Public Integrity Section, to use federal criminal laws to prosecute what DOJ sees as political corruption. But in addition, the facts are particularly stunning. Here is just a quick sampler: the DOJ actions might well have tipped partisan control of one chamber of the Alabama legislature from one party to the other, even though all the defendants tried were acquitted; the DOJ intervened to help block a piece of pending legislation, because of the DOJ view that the legislation was tainted by bribery (even though the jury concluded otherwise); the District Court found, as a matter of fact, that the state Republican Party, for reasons the District Court characterized as “racist,” had used the DOJ to go after the Democratic Party; and yet the jury completely rejected DOJ’s case. The DOJ’s failed prosecutions of John Edwards and Ted Stevens have gotten far more national attention, but this massive and failed Alabama case illustrates the profound consequences to state and local politics that can result from DOJ criminal prosecution of legislative action at the murky boundary between legitimate campaign contributions and bribery. A brief summary of the facts in the McGregor case can be found in the reply brief Siegelman’s lawyer, Sam Heldman, filed in the Supreme Court, here; Heldman was also one of the lawyers for some defendants in McGregor.
For those interested in the subject, this opinion is likely to be very influential.
Lyle Denniston writes for the National Constitution Center.
According to the Court’s order list, there were no dissents. I am very surprised, and disappointed. The John Edwards case brought to the public’s attention the risk of criminal prosecutions based upon murky law and potentially overzealous prosecutors.
MORE from AP.
LA Times reports on the Don Siegelman cert petition.
The New York Times offers this news analysis as we await the John Edwards verdict. The article discusses a point, which I make more fully in this Slate piece, tying the Edwards prosecution to those of Tom DeLay and Don Siegelman. (The Siegelman cert petition will be before the Supreme Court very soon.)
My new Slate jurisprudence column begins: “If politics makes for strange bedfellows, so too it seems do political prosecutions.”
It is no wonder then that liberals and conservatives have rallied around these politicians, despite the fact that most wouldn’t win any popularity contests. (Edwards was cheating on his wife while she had breast cancer, and then later lied about it on national television.) Each of these cases, which feature prosecutors relying on novel theories to criminally prosecute prominent political figures, raises two distinct dangers.
First, if the law is murky, prosecutors with a political agenda could use criminal prosecutions to take down their political enemies. Siegelman, Edwards, and DeLay each claimed that the prosecutions against them were politically motivated: Siegelman and Edwards blame Bush administration Justice Department prosecutors, while DeLay blames former Travis County District Attorney Ronnie Earle, a Democrat.
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
Columnist George F. Will recently wrote that “(u)ntil the Supreme Court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics.” The danger is even greater than Will describes, and nothing illustrates it better than the plight of one of our clients.
Paul S. Minor, a highly successful trial lawyer in Mississippi, is serving an eight-year sentence for doing what the First Amendment scrupulously protects: supporting candidates for public office through contributions to their election campaigns. Minor’s case is a cautionary tale of how prosecutors can transform participation in the political process into a 20-year felony when courts do not require proof of an agreement to “exchange” campaign contributions for favorable official acts as a predicate for a corruption prosecution.
This is in line with my Slate piece today on the criminalization of politics.
Alex Stein has posted this draft on SSRN (Law and Contemporary Problems). Here is the abstract:
This Article develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given the inherently transactional and private nature of these offenses, courts should elicit the parties’ intent from the economics of their exchange. When the exchange yields the parties a benefit not available on the open market, then – depending on the exchange’s particulars – it constitutes bribery, unlawful gratuity, or honest-services fraud. Based on this simple insight, I criticize the Supreme Court’s jurisprudence of criminal corruption.
National Law Journal: “After the U.S. Court of Appeals for the 11th Circuit upheld bribery and “honest services” fraud convictions of former Alabama governor Don Siegelman last year, more than 100 former state attorneys generals decided to intervene.”
My earlier coverage of this pending cert. petition is here.
In early February I flagged a cert. petition involving Former Alabama Governor Don Siegelman, saying I suspected and hoped the petition gets a lot of attention, because it raises important and recurring issues which have never been fully resolved about the relationship between the laws of bribery (and related offenses) and campaign contributions.
It has indeed gotten some heavyweight support, which not only increase the chances the Court would take they case. The briefs supporting cert. also illustrate why the Court should take the case. From my work in the Carrigan case (to be argued on remand in the Nevada Supreme Court on Monday), and from watching the John Edwards case, I have come to see the danger of prosecutorial discretion in the criminal election law area where vague statutes, First Amendment interests, and sometimes political calculation figure into prosecutorial decisions.
First I would highlight the amicus brief of Rick Pildes and Sam Issacharoff, which Rick mentioned briefly yesterday. The brief draws heavily on the work of Dan Lowenstein, whose careful, comprehensive and detailed treatment of the issue highlights the desperate need for Supreme Court clarity in this area. Rick and Sam’s brief shows how the dangers which Lowenstein highlighted have come to pass in the honest services area and related prosecutions, despite the Court’s recent Skilling opinion.
The other brief I would highlight is this brief from 100 former state attorneys general of both parties. A snippet:
Having served as chief legal officers and/or law enforcement officers, we do not urge any action that might remove a valuable law enforcement tool in the battle to rid government of corruption. At the same time, however, clear legal standards are required to protect individuals from politically-motivated prosecutions based on conduct that is ingrained in our campaign finance system and has always been considered legal. The conviction of public officials under a charge of “honest services”mail fraud, conspiracy to commit that offense, or bribery, based on an allegedly “corrupt” agreement without the showing of an “explicit” quid pro quo linkage between the official action and the campaign contribution, will have an impermissible chilling effect on how political campaigns are run throughout the country. This Court should take action now to clarify the standards under which this critical aspect of the democratic process may be subject to the criminal laws.
With this kind of support, I would be shocked, actually, if the Court turns down this case.
The cert. petition pending before the Supreme Court concerning the criminal conviction of former Alabama Governor Don Siegelman raises important issues concerning whether campaign contributions can ever be treated as bribes and, if so, under what circumstances. Rick Hasen has rightly observed that the petition presents “important and recurring issues which have never been fully resolved about the relationship between the laws of bribery (and related offenses) and campaign contributions.”
I have now filed an amicus brief, along with my colleague Sam Issacharoff, in support of Siegelman’s cert. petition. Here is an edited excerpt (without footnotes) from the opening Statement of that brief:
The Petition raises important issues concerning the increasing use of vague, conflicting, and unsettled definitions of bribery in federal criminal prosecutions of state-level political activity. Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600. See Daniel H. Lowenstein, When Is a Campaign Contribution a Bribe?, in Private and Public Corruption 127, 129 tbl.6.1 (William C. Heffernan & John Kleinig eds., 2004). Many of these federal prosecutions involve high-profile political figures, such as the prosecution of former Senator Ted Stevens, the currently pending prosecution of former Senator John Edwards, the prosecution of former Governor Donald Siegelman, or the prosecution of Richard Scruggs, one of the most prominent trial lawyers in the United States.
In a number of these cases, federal judges and others have criticized federal prosecutors for excessively ambitious zeal in their pursuit of criminal charges against high-profile public or political figures. As is well known, United States District Judge Emmet Sullivan cited for contempt three attorneys in the Department of Justice (DOJ) in the Stevens case for what Judge Sullivan called their “outrageous” failure to turn over to Stevens’s defense counsel certain documents. The DOJ indictment of John Edwards for the crime of receiving illegal campaign “contributions,” for large payments two of his supporters made to Edwards’s mistress, has been strongly criticized by experts in campaign-finance law as an example of prosecutorial overreaching. That prosecution is based on a novel and expansive interpretation of the term “contribution” to a context far removed from the way that term has traditionally been understood in the campaign-finance laws. In many of these contexts, as in the Siegelman case, United States Attorneys that Presidents of one party have appointed initiate prosecutions of high-level political figures from the opposite party; allegations arise that the prosecutions have a partisan cast.
Given the potential vagueness of the line between campaign contributions and bribes, these allegations are not surprising. As former professor of law and Ninth Circuit Judge John Noonan wrote in his comprehensive analysis of the issue: “Depending on the decision of the prosecutor and the will of the judges, many contributions could be classed as bribes.” John T. Noonan, Jr., Bribes 651 (1984). When it comes to core democratic activities, such as the soliciting and giving of campaign contributions, that is an intolerable situation. . . .
[V]agueness concerns continue to plague honest-services “corruption” prosecutions under 18 U.S.C. § 1346 despite this Court’s effort in Skilling v. United States, 130 S. Ct. 2896 (2010), to root out such concerns. Federal prosecutors have responded to Skilling by replacing unconstitutionally vague honest-services fraud prosecutions of state officials and private actors, for deprivation of “intangible rights,” with vaguely defined and expansive conceptions of “quid pro quo bribery” in honest-services “bribery” prosecutions. But if honest-services bribery convictions can rest on less than the “explicit promise” of a quid pro quo required under McCormick v. United States, 500 U.S. 257, 273 (1991), potential defendants will confront similar vagueness concerns with respect to “bribery” prosecutions under 18 U.S.C. § 1346 that this Court held unconstitutional with respect to “intangible rights” prosecutions in Skilling. Vague definitions of the quid pro quo reintroduce the same constitutional infirmity that the Court tried to stanch in Skilling.
Using expansive and loosely defined conceptions of “bribery” as an end-run around Skilling is particularly troubling when the alleged quid . . . is otherwise valuable and common political activity, such as the making of campaign contributions, the petitioning of public officials, or the endorsement of candidates for public office. These kinds of protected political activity are often undertaken for a mix of motives, including self-interested ones. As a result, the clarity and precision about what constitutes “bribery” under 18 U.S.C. § 1346 that is currently lacking in the lower federal courts must be provided, lest those engaged in core democratic processes be able to do so only at the sufferance of federal prosecutors. . . . This Court’s review is needed to ensure that such activity not subject citizens to the risk of criminal prosecution at the discretion of federal prosecutors invoking uncertain and imprecisely defined conceptions of honest-services “bribery” under 18 U.S.C. § 1346.
When a copy of the brief is available online, I will post a link for those interested.
This is one to watch, and the question will be how this differs from legal, but unsavory, business as usual.
Reuters has this story on the Milwaukee DA’s investigation into claims that two groups — one conservative (WRTL) and the other liberal (Wisconsin Jobs Now) — may have violated state law by giving something of value in their efforts to get voters to cast absentee ballots in recall elections.
BNA reports here ($) that “[t]he Senate Judiciary Committee has advanced new legislation to close gaps in federal anti-corruption laws created by recent court decisions, and key Senate lawmakers said they now are working closely with their House colleagues to craft a bill that can be enacted into law.” The bill reportedly includes amendments to the “honest services” mail and wire fraud statute, which Skilling v. United States held includes bribery and kickbacks but not undisclosed self-dealing.
The Milwaukee Journal Sentinel reports here on an email announcing that WRTL and Family Action coalition were ”offering rewards [in the form of $25 and $75 gift cards] for volunteers who make an impact over the weekend by educating and encouraging family and friends to voted [sic] by absentee ballot” in the July recall primary. Milwaukee Assistant DA Bruce Landgraf, who’s got a strong record of prosecuting election crimes, is reportedly looking into whether there’s been a violation of state law.
Congressional Research Service’s report “The State of Campaign Finance Policy: Recent Developments and Issues for Congress” may be found here. It provides an overview of recent developments, up through Arizona Free Enterprise Club. Also of interest is this CRS report on mail and wire fraud (as well as an abridged version), including the “honest services” statute that was at issue in Skilling v. United States.
Following up on this post, Dan Lowenstein sent this response to the election law listserv, which I am now reprinting with his permission.
Since Rick was imprudent enough to request my take on this case, here it is. In my opinion, the California statute (and any similar statutes that may exist) should be construed to apply only to personal as opposed to political benefits offered to a potential candidate to induce him to drop out or not to run. Admittedly, I am made uneasy by the fact that the language of the California statute does not suggest such a distinction. But the statute, if construed to apply to political benefits, sweeps much too broadly. Statutes, like other utterances, are and should be understood to be sensible. For an explanation of why applying the statute to political benefits is not sensible, see my article referred to in the casebook.
Based on a cursory skim of the LA Times story that Rick links on his blog, Mr. Silberman is accused of offering to reimburse the other candidate’s filing fee. It’s hard to tell based on that information alone whether he (allegedly) offered a personal or political benefit.
The LA Times offers this report, with the subhead: “Jury is deliberating charges that Harvey Silberman tried to bribe his opponent to drop out of 2008 Superior Court race. His two political consultants pleaded no contest to conspiracy charges.”
Dan Lowenstein was involved in a case somewhat similar to this years ago involving Bobbi Fieldler. Here’s a few paragraphs on the issue from the Lowenstein, Hasen, and Tokaji casebook (4th ed. 2008) at page 638:
Fiedler was a California member of the House of Representatives who was planning to run in the 1986 Republican primary for the right to run against then Democratic Senator Alan Cranston. She and her aide, Paul Clarke, were accused of attempting to induce another potential candidate, Ed Davis, to withdraw from the Republican primary by offering Davis assistance in raising funds to pay off a considerable deficit that he had incurred. According to the indictment, this offer violated California Elections Code §18205, quoted
above. So far as is known, it was the first time anyone had ever been prosecuted under the section, which had originally been enacted in 1893.
About a week after the indictment I was retained to serve on the defense team, in part because my article supported the position that the allegations against Fiedler and Clarke did not violate California law even if they were true. As it turned out, there was so little evidence against Fiedler that the Los Angeles District Attorney agreed to the charge against her being dismissed. Although we believed the evidence against Clarke was equally weak, the District Attorney disagreed and pursued the case against him. We moved to have the case dismissed on a variety of legal grounds, including our contention that an offer of political benefits such as assistance in raising funds to pay off a campaign deficit did not constitute “valuable consideration” under Section 18205.
The good news from my perspective was that the Superior Court granted the motion to dismiss, and the District Attorney decided not to appeal. The bad news was that instead of deciding whether the statute covered political benefits in exchange for a withdrawal of candidacy, the court ruled on the very narrow ground that the list of verbs in Section 18205 does not include “offer.” Thus, although a candidate who solicits a benefit in exchange for withdrawing is covered, a person who offers a benefit to a candidate in exchange for a withdrawal is not.
I’ll be very interested in Dan’s take on this; the issues in the current case are not exactly the same.