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

[Marty Lederman]

I don't understand this, Mark:  The fact that an individual has a
constitutional right to make a contribution does not mean that the
legislature cannot prohibit the recipient of that contribution from taking
official action -- even "only" to direct subordinates to entertain a
meeting with the contributor -- as a result of the contribution.  That
sounds like a non sequitur.  Moreover, it's clear that the legislature *can
*prohibit the official from urging the subordinate to act on the
contributor's substantive request because of the contribution (what I'm
calling QPQ #2).  So why isn't this prohibition on QPQ #1 likewise
constitutional?

On Tue, Jun 28, 2016 at 11:10 AM, Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> If the "gift" is a campaign contribution (as the Chief suggests) or an
> independent expenditure favoring the official's reelection or a
> recommendation to the governor that the official be promoted, each of which
> may be constitutionally protected, it seems to me that the prohibition is
> unconstitutional.
>
> Mark Scarberry
>
> On Tuesday, June 28, 2016, Marty Lederman <lederman.marty at gmail.com>
> wrote:
>
>> 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?
>>
>>
>
> --
> Prof. Mark S. Scarberry
> Pepperdine Univ. School of Law
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160628/1140f0e1/attachment.html>