[EL] Breaking: SCOTUS will hear Gov. McDonnell appeal; more news

Fri Jan 15 13:12:28 PST 2016

    Breaking: #SCOTUS Will Hear Gov. McDonnell’s Corruption Appeal
    <http://electionlawblog.org/?p=79051>

Posted onJanuary 15, 2016 1:00 pm 
<http://electionlawblog.org/?p=79051>byRick Hasen 
<http://electionlawblog.org/?author=3>

The Supreme Courtwill hear 
<http://www.supremecourt.gov/orders/courtorders/011516zr_l5gm.pdf>Gov. 
McDonnell’s appeal. It waspretty likely 
<http://electionlawblog.org/?p=78889>the Court would do this once it 
allowed the former governorto stay out of 
jail<http://www.bna.com/former-va-gov-b17179935280/>pending a decision 
on the cert. petition. The Court would not have done that unless it was 
very likely to hear the case.

The Court limited the grant to the first question inthe cert. petition 
<http://www.scotusblog.com/wp-content/uploads/2015/10/McDonnell-petition-10-13-15.pdf>(the 
second was on a jury issue), and that question reads:

    *I.*Under the federal bribery statute, Hobbs Act, and
    honest-services fraud statute, 18 U.S.C. §§ 201, 1346, 1951, it is a
    felony to agree to take “official action” in exchange for money,
    campaign contributions, or any other thing of value. The question
    presented is whether “official action” is limited to exercising
    actual governmental power, threatening to exercise such power, or
    pressuring others to exercise such power, and whether the jury must
    be so instructed; or, if not so limited, whether the Hobbs Act and
    honest-services fraud statute are unconstitutional.

[This post is in progress]

The question presented in this case differs from some of the other 
recent high profile corruption prosecutions, from Gov. Blagojevich to 
Gov. Seligman to Gov. Rick Perry to John Edwards to Tom DeLay. Butas 
I’ve argued <https://electionlawblog.org/?p=64361>, there’s a strong 
necessity of clear rules to deal with the danger of overzealous 
prosecutions and the “criminalization of politics.” As I wrote earlier 
about Perry:

Perry joins the list of other politicians prosecuted under controversial 
or dubious theories, including Tom DeLay, John Edwards,Scott Walker 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html>, 
Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get 
convicted by juries; some don’t.  Some have their prosecutions 
overturned on appeal; some don’t.

The common thread here is the criminalization of politics. As I wrote 
aboutDeLay 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/tom_delay_s_conviction_reversed_on_appeal.html>:

    Some liberals are no doubt disappointed to hear that a Texas
    appellate court today, on a 2-1 vote, reversed the conviction
    <http://electionlawblog.org/?p=55380> of former U.S. House Majority
    Leader Tom DeLay. They shouldn’t be. There were good reasons to
    think
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html> that
    DeLay’s prosecution in Texas for violations of state campaign
    finance law, like the federal prosecutions of former presidential
    candidate John Edwards
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html> and
    former Alabama Gov. Don Siegelman, involved politically motivated
    charges brought by overzealous prosecutors.

And I wrote aboutEdwards 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html>:

    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 asRep. Randy “Duke” Cunningham’s yacht bribe
    <http://articles.cnn.com/2005-11-28/politics/cunningham_1_mzm-mitchell-wade-tax-evasion?_s=PM:POLITICS> or
    Rep. William Jefferson’s $10,000 stash hidden in his freezer
    <http://www.nytimes.com/2006/05/22/washington/22jefferson.html?_r=1%26hp%26ex=1148270400%26en=2bc01901bdbff48e%26ei=5094%26partner=homepage%26oref=slogin>.
    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
    <http://articles.latimes.com/2012/mar/20/opinion/la-ed-stevens-20120320> 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.

    Thanks to expansive federal law, the threat of criminal liability
    hangs over all elected officials, federal, state, and local. As
    professors Rick Pildes and Sam Issacharoff explain in their amicus
    brief
    <http://electionlawblog.org/wp-content/uploads/amicusseieglmanfinal.pdf> in
    the Siegelman case, “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.”

Share 
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79051&title=Breaking%3A%20%23SCOTUS%20Will%20Hear%20Gov.%20McDonnell%26%238217%3Bs%20Corruption%20Appeal&description=>
Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery 
<http://electionlawblog.org/?cat=12>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    “Which members of Congress become lobbyists? The ones with the most
    power. Here’s the data.” <http://electionlawblog.org/?p=79049>

Posted onJanuary 15, 2016 11:47 am 
<http://electionlawblog.org/?p=79049>byRick Hasen 
<http://electionlawblog.org/?author=3>

Jeffrey Lazarus 
<https://www.washingtonpost.com/news/monkey-cage/wp/2016/01/15/which-members-of-congress-become-lobbyists-the-ones-with-the-most-power-heres-the-data/>at 
the Monkey Cage.

Share 
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79049&title=%26%238220%3BWhich%20members%20of%20Congress%20become%20lobbyists%3F%20The%20ones%20with%20the%20most%20power.%20Here%E2%80%99s%20the%20data.%26%238221%3B&description=>
Posted incampaign finance 
<http://electionlawblog.org/?cat=10>,legislation and legislatures 
<http://electionlawblog.org/?cat=27>,lobbying 
<http://electionlawblog.org/?cat=28>

    “We Have Our First Lawsuit Over Ted Cruz’s Eligibility — And It’s A
    Doozy” <http://electionlawblog.org/?p=79047>

Posted onJanuary 15, 2016 9:08 am 
<http://electionlawblog.org/?p=79047>byRick Hasen 
<http://electionlawblog.org/?author=3>

TPM reports 
<http://talkingpointsmemo.com/livewire/cruz-lawsuit-birth-challenge>(with link 
tocomplaint 
<https://drive.google.com/file/d/0B4rblq-fxqLac2FWR0tPWlNpcEx3ajBtNVdvVnpXakowbzhN/view>).

Share 
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79047&title=%26%238220%3BWe%20Have%20Our%20First%20Lawsuit%20Over%20Ted%20Cruz%26%238217%3Bs%20Eligibility%20%26%238212%3B%20And%20It%26%238217%3Bs%20A%20Doozy%26%238221%3B&description=>
Posted incampaigns <http://electionlawblog.org/?cat=59>

    “How Obama Made This Congressman’s Day”
    <http://electionlawblog.org/?p=79045>

Posted onJanuary 15, 2016 8:18 am 
<http://electionlawblog.org/?p=79045>byRick Hasen 
<http://electionlawblog.org/?author=3>

HuffPo 
<http://www.huffingtonpost.com/entry/john-sarbanes-campaign-finance-reform_56982266e4b0ce496423f1b1>:

    You could forgive Rep. John Sarbanes (D-Md.) if he celebrated a
    little during President Barack Obama’s State of the Union address.

    That’s because when Obama came to what he said was perhaps his most
    important point, it sounded an awful lot like a plan Sarbanes has
    been developing for years: a way to make regular citizens feel like
    they have a say in politics again.

Share 
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79045&title=%26%238220%3BHow%20Obama%20Made%20This%20Congressman%26%238217%3Bs%20Day%26%238221%3B&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160115/5e08f0aa/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160115/5e08f0aa/attachment.png>