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

Tue Jun 28 09:26:19 PDT 2016

Indeed, I recall a US Supreme Court case that upheld Nevada's ethics rules restricting voting by legislators     on bills  based on having received campaign contributions- certainly an official act.
Trevor Potter

Sent from my iPhone

On Jun 28, 2016, at 11:52 AM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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<mailto: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<mailto: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

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