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

[Daniel Tokaji]

Forwarding Rick's email, which may not have made it to the listserv.

---------- Forwarded message ----------
From: Pildes, Rick <pildesr at mercury.law.nyu.edu>
Date: Wed, Jun 29, 2016 at 1:10 PM
Subject: RE: [EL] A McDonnell-based question: Are some quid pro quos
unobjectionable--or even constitutionally protected?
To: Marty Lederman <lederman.marty at gmail.com>, Daniel Tokaji <
dtokaji at gmail.com>
Cc: "law-election at uci.edu" <law-election at uci.edu>


I was tied up yesterday, but I’ll provide one round of response to Marty’s
main comments/questions –



1.  On the “significant constitutional concerns” the Court’s opinion
flags:  I think Marty’s anxieties on this score reflect an excessively
legalistic way of responding to, or understanding, the Court’s opinion.



This unanimous opinion is written in a larger context in which the Court is
well aware of prosecutorial overreach in recent years in the use of the
criminal justice system to go after various politicians, whether it is the
misguided prosecution of John Edwards, or the failure to turn over
exculpatory evidence in the case against Ted Stevens, which led the federal
trial judge to say he had “never seen anything approaching the mishandling
[of evidence] and misconduct that I’ve seen in this case,” or the expansive
use of the honest-services fraud law that the Court overturned in the
Skilling case (a private defendant) and that had been used against many
local and state elected officials.



The Court is also aware, from the * McDonnell *case itself, that some trial
judges are willing to approve extraordinarily latitudinous jury
instructions about what constitutes bribery.  Under these instructions,
politicians who give their supporters (voters or donors) special access to
meetings with policy advisors, or with the politician or her staff, could
be guilty of bribery.



In this context, the point of the Court’s flagging these constitutional
concerns is to send a message – properly so, in my view – to other actors
in the system, from prosecutors to lower court judges, to do a better job
of recognizing that the criminal law here is operating in an area of
considerable constitutional sensitivity.  The Court is not primarily laying
down a marker threatening to hold unconstitutional various anti-bribery
laws, or ones that legislatures might consider enacting. It is telling
prosecutors and judges they have to be more careful about how they define
the line between crime and politics when they enforce, interpret, and apply
the federal bribery laws in these political cases.



Indeed, I filed an amicus brief, with Sam Issacharoff, urging the Court to
hear these issues a couple years back when they arose in the case of
Governor Siegelman of Alabama (I didn’t take a position on the facts of his
case).  In that brief, we emphasized the constitutional sensitivity of
these issues in similar terms to the Court’s opinion yesterday.  But we did
so to stress the importance of interpreting these laws in an appropriate
way, not to argue that these laws were on the verge of being
unconstitutional.



True, one can imagine that at some far-fetched point, it would indeed
become unconstitutional to treat as bribery certain ways of rewarding
supporters – if, let’s say, someone offered to contribute the maximum to an
incumbent President’s campaign on condition that the President invite her
to the White House correspondents’ dinner (the Court mentions invitations
to “events” in these passages).



But contrary to the excessively legalistic reaction, the “audience” for the
Court’s “constitutional concerns” is not future doctrinal developments in
which the Court is about to hold unconstitutional various anti-bribery
laws.  The audience is clearly other actors in the political and legal
system who are being told to exercise a kind of care and precision in these
sensitive areas not evident in the jury instructions in *McDonnell.*



2.  The other question Marty raised was whether the decision would make it
too difficult to prosecute in contexts like his “Quid Pro Quo 1.”  Both Bob
Bauer, at his blog, and Dan Tokaji, at this blog, have already said much of
what I would have said about that.  As I noted in my initial message, the
most important passage of the opinion, once you get past the holding, is
the one Bob and Dan both elaborate upon, which makes clear  that if a
politician actually pressures other officials to take some official action,
that can still constitute a violation of the bribery laws.  That’s why I
think the line the Court drew in this difficult area was well-crafted:  on
the one hand, it can’t be a crime to encourage public figures to meet with
constituents, including donors; on the other, the Court is also recognizing
that politicians can’t get off the hook when they are actually engaging in
quid pro quos that entail their pressuring other officials to take some
action the donor seeks.



Of course, it’s going to be hard to determine in specific cases when a
politician has crossed the line into “pressuring.”  You can worry about
that from both sides of the line, though.  Given the propensity of jurors
to think the association of politicians with campaign contributions is
always corrupt, it might well be that jurors are nearly always going to
find present the kind of “pressuring” the Court’s decision requires when no
other specific public action is being taken.  The lower courts might well
eventually have to provide more content regarding what, objectively, can
count as sufficient pressuring.  That kind of case-by-case development is
inevitable where nuanced lines appropriately have to be drawn.





Best,

Rick



Richard H. Pildes

Sudler Family Professor of Constitutional Law

NYU School of Law

40 Washington Square South, NY, NY 10012

212 998-6377



*From:* Marty Lederman [mailto:lederman.marty at gmail.com]
*Sent:* Tuesday, June 28, 2016 6:07 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>
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> 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>
Date: Mon, Jun 27, 2016 at 11:53 AM
Subject: McDonnell
To: Daniel Tokaji <dtokaji at gmail.com>, "law-election at uci.edu" <
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




-- 
Daniel Tokaji
Charles W. Ebersold & Florence Whitcomb Ebersold Professor of
Constitutional Law
The Ohio State University | Moritz College of Law | 614.292.6566
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