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

[Mark Scarberry]

I have very little time to respond today, but both Carrigan and Caperton
are distinguishable.

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Tue, Jun 28, 2016 at 9:26 AM, Trevor Potter <tpotter at capdale.com> wrote:

> 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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