[EL] A McDonnell-based question: Are some quid pro quos unobjectionable--or even constitutionally protected?

[Marty Lederman]

Rick writes that "the Roberts opinion does an excellent job at drawing the
difficult line between crime and the ordinary, if sometimes tawdry,
workings of democratic politics."  As I was re-reading the opinion,
however, it occurred to me that I'm not sure exactly what Rick, the
Justices, and other listmembers, consider to be the "ordinary, if sometimes
tawdry, workings of democratic politics" that should not--or perhaps, per
the Roberts opinion, *cannot*--be prohibited.  (That is to say:  This isn't
a question about the best reading of the statute--I'll assume the Court
answered that question correctly. Instead, it's a question about what sorts
of quid pro quos a legislature can and should prohibit *going forward*.)

Assume a case of an elected governor, with a constituent who has developed
a nutritional supplement.  The constituent wishes to secure an
audience with the
state food and drug agency and, ultimately, to have that agency issue a
grant to study the efficacy of his supplement.  The governor has the
authority under state law to direct the actions of the food and drug
agency.  In order to grease the wheels for the desired access and/or
favorable action, the constituent gives the governor various things of
value:  a campaign contribution, tickets to *Hamilton*, a box of
chocolates, $20,000 worth of designer clothing, and a $15,000 loan to cover
the costs of the governor's daughter's wedding.

The governor does two things in response:  He (i) directs the agency
officials to take a meeting with the constituent, and then, (ii) after the
meeting, he urges the agency to issue the grant (but does not direct it to
do so).

Assume we know beyond a reasonable doubt that the gifts to the governor
were a "but for" cause of these two actions--let's say, for example, that
the governor proudly acknowledges the two quid pro quos, calling them the
"ordinary workings of democratic politics."  (Many other constituents who
have not made such donations to the governor do not receive such access,
even after they ask for it.)

We know from *McDonnell*, and from *Birdsall*, that the governor can
be--and presumably Rick would say, *should *be--prosecuted for the *second
QPQ *action he took:  advising the agency to issue the grant.

But let's say the state legislature, in response to the decision in
*McDonell*, has also specifically made it unlawful for officials to offer
or to secure *access to decision-makers acting in their official,
governmental capacity* in exchange for things of value.  (This hypo
eliminates the federalism angle.)

Do Rick and others think there is anything *wrong *with the legislature
having prohibited Quid Pro Quo #1?  What's remarkable about the Roberts
opinion is Part II-B, in which he reasons, not only that Congress has not
criminalized such conduct, but that such a statute "would raise significant
constitutional concerns"!

Really?  A legislature cannot prohibit an official from providing access to
decision-makers (acting in their official capacity) in exchange for things
of value?  Even though it's perfectly fine to prohibit the same official,
in exchange for the same gifts, from urging the subordinate officials to
rule a certain way?

I find that to be a fairly remarkable proposition.  And Roberts does not
offer much of an explanation for it.

Do any of you agree with the Chief Justice that such a prohibition is
constitutionally dubious--or at least that there's nothing wrong with QPQ
1, even though QPQ 2 is, and can be, prohibited?

And isn't it a fairly big deal that a unanimous Court has now declared that
a prohibition on QPQ 1 would "raise significant constitutional concerns"?
That's not merely a holding about existing law--it's a deliberate effort to
deter future legislative efforts to stem the tide of QPQs.  Indeed, if
taken at face value, might it even call into question *existing *laws--touted
in McDonnell's own brief--such as the prohibition on accepting gifts from
anyone “whose interests may be substantially affected by the
performance or nonperformance
of the individual’s official duties,” 5 U.S.C. § 7353(a)(2); and (iii) a
host of ethics rules, including a prohibition on using “public office”
for “private
gain,” 5 C.F.R. § 2635.702?

On Mon, Jun 27, 2016 at 2:02 PM, Marty Lederman <lederman.marty at gmail.com>
wrote:

> Rick is right that that's what was worrying the Justices.  In short:
>
> 1.  People give elected officials (and candidates) things all the time,
> including campaign contributions and "thank you" gifts.
>
> 2.  Elected officials do favors for their supporters all the time with
> respect to possible state action, often because they concur with those
> supporters' views about what the government ought to be doing, or simply
> because they think it is their obligation to be of service to their
> constituents as a matter of good government, wholly apart from whether
> they've received anything from those constituents.
>
> 3.  Juries will often conclude that the favors were a *function *(or "but
> for" result) of the contributions/gifts, even in some cases where they were
> not.  And this is so even though the prosecutor has the burden of showing, *beyond
> a reasonable doubt*, that the quo was triggered by the quid.  (At oral
> argument, Justice Kennedy expressed contempt for the government's argument
> that the "beyond a reasonable doubt" burden for showing a quid pro quo was
> a serious check on prosecutorial overreach.  In effect, he said:  "Give me
> a break.")  And the risk of such "false positives" by the jury will
> (arguably) have a harmful chilling effect.
>
> So, for example, here's the key paragraph of Roberts's opinion, making
> this very point:
>
> But conscientious public officials arrange meetings for
> constituents, contact other officials on their behalf, and
> include them in events all the time. The basic compact
> underlying representative government assumes that public
> officials will hear from their constituents and act appropriately
> on their concerns—whether it is the union official worried about a plant
> closing or the homeowners who wonder why it took five days to restore power
> to their neighborhood after a storm. The Government’s position could cast a
> pall of potential prosecution over these relationships if the union had
> given a campaign contribution
> in the past or the homeowners invited the official to join
> them on their annual outing to the ballgame. Officials
> might wonder whether they could respond to even the
> most commonplace requests for assistance, and citizens
> with legitimate concerns might shrink from participating
> in democratic discourse.
>
>
> And put that way, I suppose that the government's position does appear to
> be troubling (although I personally think "participation in democratic
> discourse" is more than a tad euphemistic about the phenomenon we're
> describing here--even an invitation to a ballgame (i.e., expensive tickets)
> is not the paradigm of "democratic discourse" in my book).
>
> Two caveats, however:
>
> 1.  At oral argument, several of the Justices--Breyer and Kennedy, for
> example--also appeared to be of the view that there's absolutely nothing
> wrong even in the case where the elected official *does *set up the
> meeting as a result of the quid.  "It happens every day," was their basic
> posture--"it's how the government works:  you scratch my back, etc."  And
> there's at least a hint of this idea in Roberts's opinion.  As Michael
> Dreeben, appearing for the government, explained, however, the fact that
> the practice is ubiquitous is a bug, not a feature--it's long been
> understood that that sort of everyday exchange *is the problem*.  (The
> fact that there's "gambling going on in here" might not be "shocking," but
> that doesn't make it lawful.)  I worry that at least some members of the
> Court now appear to be entirely sanguine about this.
>
> 2.  Why doesn't the Court's same logic--the same concern Roberts
> describes--apply to the types of "official acts" that it *is *willing to
> recognize as predicates for bribery convictions?  After all, it's just as
> common for officials to try to influence the *outcomes *of the official
> acts of their subordinates so as to reward benefactors/constituents --
> conduct for which they can be convicted -- as it is for them to instruct
> those same subordinates to take a meeting before they make their decision.
> Indeed, the latter is often a more valuable quo than the former.  (Everyone
> who's been in, or dealt with, government, or who's listened to or seen
> *Hamilton*, knows that being in the room where it happens is half the
> battle, if not more (or at the very least, it's a necessary requisite).)
>  If the risk that the jury might mistake the question of causation in the
> latter case is nothing to worry about, why does it become so troubling in
> the former?
>
>
>
> On Mon, Jun 27, 2016 at 12:30 PM, Daniel Tokaji <dtokaji at gmail.com> wrote:
>
>> Forwarding an email from Rick Pildes, which doesn't seem to have made it
>> to the listserv.
>>
>> ---------- Forwarded message ----------
>> From: Pildes, Rick <pildesr at mercury.law.nyu.edu>
>> Date: Mon, Jun 27, 2016 at 11:53 AM
>> Subject: McDonnell
>> To: Daniel Tokaji <dtokaji at gmail.com>, "law-election at uci.edu" <
>> law-election at uci.edu>
>>
>>
>> In my view, the Roberts opinion does an excellent job at drawing the
>> difficult line between crime and the ordinary, if sometimes tawdry,
>> workings of democratic politics. This is the most important opinion since
>> the 1990s on defining this boundary.  An important point that would be
>> inappropriate for the Court to mention is that juries (reflecting the
>> intuitions of most Americans) view almost any association of politicians
>> with money as corrupt, but there is no way to take money and influence out
>> of politics altogether.  All the more important, then, for the Court to
>> provide today’s greater clarity about legitimate if unseamly politics and
>> bribery.  One of the most important aspects of the opinion that might be
>> overlooked are passages like these, which also explain why McDonnell could
>> possibly be retried:
>>
>>
>>
>> “Of course, this is not to say that setting up a meeting, hosting an
>> event, or making a phone call is always aninnocent act, or is irrelevant,
>> in cases like this one. If an official sets up a meeting, hosts an event,
>> or makes aphone call on a question or matter that is or could be pending
>> before another official, that could serve as evi­dence of an agreement to
>> take an official act. A jury could conclude, for example, that the official
>> was attempting topressure or advise another official on a pending
>> matter.And if the official agreed to exert that pressure or givethat advice
>> in exchange for a thing of value, that would be illegal.”
>>
>>
>>
>> The Court should have addressed these issues when former Governor
>> Seigelman of Alabama sought cert. on similar issues.
>>
>>
>>
>>
>>
>> Richard H. Pildes
>>
>
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