[EL] Silberman Case

[Lowenstein, Daniel]

      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.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

“Judge indicted in bribery case faces rare criminal prosecution”<http://electionlawblog.org/?p=21106>

Posted on July 30, 2011<http://electionlawblog.org/?p=21106> by Rick Hasen<http://electionlawblog.org/?author=3>


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.

[cid:part1.02020104.09060309 at law.uci.edu]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D21106&title=%E2%80%9CJudge%20indicted%20in%20bribery%20case%20faces%20rare%20criminal%20prosecution%E2%80%9D&description=>
Posted in bribery<http://electionlawblog.org/?cat=54> | Comments Off

<http://electionlawblog.org/?p=21103>

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