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

[Chambers, Hank]

Hello all -


Marty raises great questions.  I look forward to reading where folks want to draw lines in this context.  Here are a few additional points.


1) Maybe two lines should be drawn, between regular politics and what triggers civil liability and between what triggers civil liability and what is criminal.  Governor McDonnell's behavior is not just regular politics, even if his behavior may not be criminal under the bribery/Hobbs Act/honest services wire fraud statutes.


2) The Court's line between official acts and non-official acts under 18 U.S.C. 201 now marks the line between what is criminal and not criminal under 18 U.S.C. 201, but I am not sure why it is the right place to draw the line more generally between what should be criminal and what should not be criminal in this context.  Indeed, before yesterday, the Court's line was not where the line between what was criminal and not criminal under 18 U.S.C. 201 was thought to be drawn.  The McDonnell Court narrowed the law, a la Skilling v. U.S., though possibly for the better.


3) Thank you gifts to government officials for official acts already carried out are illegal gratuities under 18 U.S.C. 201(c).


-Hank



________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Marty Lederman <lederman.marty at gmail.com>
Sent: Tuesday, June 28, 2016 6:06 AM
To: Daniel Tokaji; Pildes, Rick
Cc: law-election at uci.edu
Subject: [EL] A McDonnell-based question: Are some quid pro quos unobjectionable--or even constitutionally protected?

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<mailto: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<mailto: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<mailto:pildesr at mercury.law.nyu.edu>>
Date: Mon, Jun 27, 2016 at 11:53 AM
Subject: McDonnell
To: Daniel Tokaji <dtokaji at gmail.com<mailto:dtokaji at gmail.com>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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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