[EL] ELB News & Commentary 6/29/16

[Daniel Tokaji]

SCOTUSblog Symposium on McDonnell <http://electionlawblog.org/?p=83941>
Posted on June 29, 2016 9:33 am <http://electionlawblog.org/?p=83941> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Here
<http://www.scotusblog.com/category/special-features/symposium-on-the-courts-ruling-in-mcdonnell-v-united-states/>,
with contributions from Tara Malloy, Fred Wertheimer, Jeffrey Green & Ivan
Dominguez, and Pete Patterson & John Ohlendorf, in addition to the ones
from Hampton Dellinger and David Debold noted yesterday
<http://electionlawblog.org/?p=83901>.
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Posted in bribery <http://electionlawblog.org/?cat=54>
“A Narrow Ruling on Public Corruption” <http://electionlawblog.org/?p=83937>
Posted on June 29, 2016 6:36 am <http://electionlawblog.org/?p=83937> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

NY Times Editorial
<http://www.nytimes.com/2016/06/29/opinion/a-narrow-ruling-on-public-corruption.html?partner=rssnyt&emc=rss&_r=0>:
“The
*McDonnell* decision should be narrowly construed and need not stop
prosecutors from building strong cases against politicians who are abusing
their office for personal gain.”  I agree
<http://electionlawblog.org/?p=83914>.
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Posted in bribery <http://electionlawblog.org/?cat=54>
Montana False Campaign Speech Rules Allowed to Stand
<http://electionlawblog.org/?p=83934>
Posted on June 29, 2016 6:25 am <http://electionlawblog.org/?p=83934> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

A federal district court has denied an injunction
<http://electionlawblog.org/wp-content/uploads/Montana-Speech-Order.pdf>
against Montana rules restricting false statements by and about judicial
candidates (*Myers v. Thompson* <http://electionlawblog.org/?p=83537>).
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Posted in judicial elections <http://electionlawblog.org/?cat=19>
Eric Wang on Joyful Noise’s Fundraising for Sanders
<http://electionlawblog.org/?p=83932>
Posted on June 29, 2016 5:51 am <http://electionlawblog.org/?p=83932> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Washington Times Op-Ed:
<http://www.washingtontimes.com/news/2016/jun/28/joyful-noise-unites-citizens-for-sanders/>
“a
Sanders supporter recently demonstrated that the current campaign finance
laws are already so burdensome that even relatively sophisticated Americans
cannot comply with them.”
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Tokaji: The Overreaction to McDonnell <http://electionlawblog.org/?p=83914>
Posted on June 28, 2016 7:50 pm <http://electionlawblog.org/?p=83914> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Monday’s unanimous opinion
<http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf> in *McDonnell
v. United States *has triggered a range of strong reactions
<http://electionlawblog.org/?p=83901>. Some have lamented or even
excoriated the decision for enabling corruption, while others have
celebrated the Court for reining in overzealous prosecutors.  A careful
look at what the opinion actually says reveals that both these reactions
are exaggerated, if not plain wrong.

*McDonnell *clarifies what must be proven to convict someone of bribery
under federal law. Bribery requires a *quid pro quo*, an offer or agreement
to exchange something of value for an “official act.”  The critical
question before the Court was what counts as an official act.

The government argued that Governor McDonnell’s official acts included
arranging meetings, hosting events, and contacting government officials on
behalf of a company trying to market a nutritional product.  The
company’s CEO was giving McDonnell and his wife lots of goodies – like
private plane rides, vacations, use of a Ferrari, and cold hard cash – at
the same time of these acts.

Not so fast, said the Court: making phone calls and setting meetings aren’t
official acts, standing alone.  But they could still form the basis for a
bribery conviction, if they’re sufficiently connected to a decision the
state makes or an action it takes.  That would include, for example, a
university’s decision to undertake a research study on the product the
company was trying to sell.  It would also include the state’s decision
about what drugs are covered by its health plan.

Now here’s the key point that’s been missed in almost all the post-decision
commentary: a public official may be convicted of bribery for exerting
“pressure” or offering “advice” regarding such an official action. More
specifically, the Court says that a public official may properly be
convicted of bribery for “using his official position [1] to exert pressure
on another official to perform an ‘official act,’ or [2] to advise another
official, knowing or intending that such advice will form the basis for an
‘official act’ by another official.” The Court repeats the “pressure” and
“advice” formulation several times, evidently hoping that no one would miss
it.

Will this really make it too hard to prosecute public officials for
bribery? Not at all.  Suppose for example that a governor makes a phone
call to a state university official, asking whether the university was
planning to undertake research on a particular pharmaceutical product.
Depending on the circumstances, that phone call might be considered
“pressure.”  Or suppose that a governor emails an official at the agency
responsible for running the state’s health plan, touting the benefits of a
particular drug that’s not currently covered.  That might be deemed
“advice.”

This sounds a lot like what Governor McDonnell actually did. So why did the
Court vacate his conviction rather that affirming it?  Because in our
criminal justice system, it’s the jury’s responsibility to weigh the
evidence and find the facts necessary to convict.  And in this case, the
jury wasn’t told that there had to be pressure or advice to convict
McDonnell of bribery.  The trial judge instead told the jury that official
acts may include “acts that a public official customarily performs,
including acts ‘in furtherance of longer-term goals’ or ‘in a series of
steps to exercise influence or achieve an end.’”

It’s possible that the jury would have convicted Governor McDonnell, even
if it had been told that pressure or advice is necessary to convict. But we
can’t be sure – not beyond a reasonable doubt – that the jury would have
convicted him if properly instructed.  The Court thus had no choice but to
vacate and send the case back to the lower courts.  Harmless error rules
shouldn’t be diluted just because one thinks Governor McDonnell belongs
behind bars.

There’s another point that almost all the post-*McDonnell* commentary has
missed:  the opinion actually makes it *easier *to prosecute public
officials for bribery in one respect.  For years, lower courts have
struggled with the question whether there has to be an *explicit* agreement
to exchange something of value for an official act, in order to obtain a
bribery conviction.  The uncertainty arises from conflicting signals in two
prior Supreme Court cases: *McCormick v. United States* (1991) and *Evans
v. United States* (1992).

*McDonnell *says there doesn’t have to be an explicit agreement:  “*The
agreement need not be explicit*, and the public official need not specify
the means that he will use to perform his end of the bargain” (emphasis
added).  Now this may be dicta, and it’s conceivable that an explicit
agreement would be required in the case where the *quid *is a campaign
contribution rather than cash and gifts.  With those caveats, this aspect
of *McDonnell* actually makes it easier to prove public corruption.

What all this means is that much of the commentary on the decision misses
the mark. Good government advocates needn’t worry that the decision will
make it too hard to get bribery convictions. I suspect most juries won’t
have a hard time finding “pressure” or “advice” where evidence like that in
Governor McDonnell’s case is presented.  By the same token, libertarians
shouldn’t be too heartened by *McDonnell*.  The Court has clarified the
legal requirements for bribery convictions, but juries may infer the
exchange of material benefits for political favors even if there’s no proof
of an explicit agreement.  And that means ethically challenged politicians
like Governor McDonnell shouldn’t feel too comfortable either.
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Posted in bribery <http://electionlawblog.org/?cat=54>
“Wisconsin Redistricting Lawsuit Could Reverberate Nationally”
<http://electionlawblog.org/?p=83928>
Posted on June 28, 2016 7:25 pm <http://electionlawblog.org/?p=83928> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

American Prospect
<http://prospect.org/article/wisconsin-redistricting-lawsuit-could-reverberate-nationally>
on *Whitford v. Nichol
<http://www.fairelectionsproject.org/redistricting-documents/>*.
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Posted in redistricting <http://electionlawblog.org/?cat=6>
No Fraud in Colorado Recall Petitions <http://electionlawblog.org/?p=83926>
Posted on June 28, 2016 2:08 pm <http://electionlawblog.org/?p=83926> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Recall Elections Blog has this post
<http://recallelections.blogspot.com/2016/06/colorado-no-fraud-in-castle-rock.html>,
noting the involvement of former Secretary of State Scott Gessler in the
claim of forged signatures on the local recall petition.
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Posted in direct democracy <http://electionlawblog.org/?cat=62>
What Abortion and Voter Fraud Have in Common …
<http://electionlawblog.org/?p=83921>
Posted on June 28, 2016 1:28 pm <http://electionlawblog.org/?p=83921> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Paul Waldman provocatively argues
<https://www.washingtonpost.com/blogs/plum-line/wp/2016/06/27/the-supreme-court-strikes-down-one-of-the-worst-scams-in-american-politics/>
:

Simply put, there is no argument Democrats or Republicans have offered more
disingenuously in recent years than the claim that the regulations one
conservative state after another has passed on abortion clinics are only in
the service of “protecting women’s health.” From the first moment, it was a
fraud, a scam, a lie so transparent and obvious that it’s a wonder the
Republicans making the claim didn’t dissolve into giggles every time they
spoke it aloud. The only other example that comes close is the Republican
claim that their efforts to make it harder for Democratic-leaning groups to
vote is only for the purpose of stopping “voter fraud.”
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9>
Did McDonnell Commit Tax Fraud? <http://electionlawblog.org/?p=83918>
Posted on June 28, 2016 1:18 pm <http://electionlawblog.org/?p=83918> by *Dan
Tokaji* <http://electionlawblog.org/?author=5>

Brian Galle ponders the question here
<https://medium.com/whatever-source-derived/gov-mcdonnell-didnt-violate-federal-anti-bribery-law-yet-but-did-he-commit-tax-fraud-b7f659a16dfa#.ym96prskf>
.
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Posted in bribery <http://electionlawblog.org/?cat=54>

-- 
Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of
Constitutional Law
The Ohio State University | Moritz College of Law
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