The Need for Supreme Court Clarification of the Boundary Between Crime and Legitimate Campaign Contributions

The Supreme Court has pending before it two cert. petitions involving criminal convictions of former Governors, one from each party, in the Blagojevich and McDonald cases.  Both raise questions about where the legal boundary is, in light of prior Supreme Court cases, between the legitimate role of money in politics and criminal actions, such as accepting bribes.  When similar issues were before the Court in the case involving former Governor Siegelman, in 2012, I filed an amicus brief, along with my colleague Sam Issacharoff, explaining the doctrinal confusion and uncertainty in this important area and the need for the Court to re-engage with these issues, after the Court’s long absence from the area.  In light of the pending petitions in Blagojevich and McDonald, I am linking here to a post with that earlier amicus brief, which explains the need for Supreme Court clarification of these issues.

Here is a brief excerpt from that amicus brief in the Siegelman case:

In recent decades, this Court has decided only two major cases that define the essential elements of the federal criminal law of extortion or bribery in the context of federal anti-corruption prosecutions of state or local public officials. Both cases date to the early 1990s, in the initial stages of the substantial rise of federal prosecutions of this sort. Yet as lower courts and academic experts in this area have recognized, those two cases stand in considerable tension with each other and have created ongoing uncertainty and conflicts in the lower courts over issues as fundamental as the appropriate boundary between core democratic political activity and criminal bribery. … [T]his Court’s return to these issues is necessary to resolve this tension and bring clarity, certainty, and predictability to this highly-sensitive area of the law of democracy—particularly given the ambitious use in recent years by federal prosecutors of the honest-services bribery law, 18 U.S.C. § 1341 and § 1346, and the federal funds bribery law, 18 U.S.C. § 666, to allege criminal bribery involving state and local officials based on otherwise protected political activity such as campaign contributions. . . .

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.  . . .



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