[EL] Donors' demands to Sen. Sinema

[Kelner, Robert]

The letter seems to me to be carefully crafted and to stay safely on the proper side of the line. Note that it never explicitly says they will or won’t make financial contributions, but rather speaks broadly in terms of withdrawing “support” for her. They also don’t explicitly say that they will provide her with money if she does change her position, through that’s the implied subtext. So I don’t think this implicates bribery or the illegal gratuity statute at all. The closest hook would be extortion, but that would be a hard case to make for a number of reasons, including the specific language they use and the First Amendment overlay, where they are expressing disagreement with her policy views and broadly proposing to stop supporting her.

These kinds of messages to candidates are a thing we have seen before from time to time, and I am fairly certain none have ever been charged, even where the language has been more explicit than what we see here.

Sent from my iPhone

On Jan 22, 2022, at 10:20 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

 [EXTERNAL]
I had a similar question and it has been a while since I’ve looked at the illegal gratuities statute, 18 USC 201(c).  They are not giving something for an official act.  They want to take something away. And they use "should" not must. So it doesn't seem to fit there comfortably.  The "should" language also seems to make a Hobbs Act extortion claim harder, especially in the context of a campaign contribution.  But I'm not up on the case law and perhaps there's a clearer answer. I would guess this letter was run by lawyers before being sent.

Rick Hasen
Sent from my iPhone. Please excuse typos.
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Volokh, Eugene <VOLOKH at law.ucla.edu>
Sent: Friday, January 21, 2022 11:29:50 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Donors' demands to Sen. Sinema


From the donors’ letter<https://www.politico.com/f/?id=0000017e-7431-dbc8-a1ff-75310e2a0000> to Sen. Sinema:



We must draw a line. We cannot in good conscience support you if you refuse to use your office to protect our fundamental rights to vote, and we will be obliged to back alternatives for your seat who will do the right thing for our country. Further, we are in agreement that, should your ultimate decision be to prioritize the veneer of bipartisanship, in the form of an arcane senate rule, over the voting rights that John Lewis put his life on the line to defend, your campaign should return each of our 2018 Senate campaign donations.



Any thoughts on whether this crosses the line from permissible demand (and a permissible threat of political retaliation) into an impermissible implicit quid pro quo?  Not a rhetorical question:  I’d love to know the answer, if there is a clear answer.  Many thanks,



Eugene





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