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.