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.