"The Gratuities Debate and Campaign Reform - How Strong is the Link?"

George Brown has posted this paper on SSRN. Here is the abstract:

he federal gratuities statute, 18 USC Section 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and is a part of, what I have called the
counter-revolutionary critique of the hard line on government ethics that grew out of the Watergate scandal. This Article focuses on recent federal court decisions, including the 1999 Supreme Court Sun-Diamond case, that appear to show reservations and even hostility toward the statute. These cases express concern about its potential sweep, its possible role as a trap for the unwary, and the power it gives to prosecutors. The recent
District of Columbia Circuit decision in United States v. Valdes is noteworthy in giving a narrow construction to broad language, based in part on a negative view of the statute. Nonetheless, the Article contends that the gratuities statute plays an important role as an auxiliary to bribery, serving as a prophylactic statute and permitting the prosecution of appearances of unethical behavior. A redrafted statute could correct undue narrowing and clear up confusion about what the statute does cover. The prohibited source approach discussed in connection
with Sun-Diamond provides a possible model.

Even with a redrafted statute, the controversy is likely to continue. The Article questions whether gifts from regulated entities to their regulators, and similar forms of public sector gratuities, are examples of innocent speech that serves a valuable social function. Campaign contributions, on the other hand, are often examples of such speech. Yet the Court has permitted limiting them, despite serious First Amendment objections to limits on speech and association. The compelling governmental interest that permits this regulation bears a strong resemblance to that underlying the anti-gratuity statute: fighting corruption by curbing attempts to acquire influence that cannot be adequately reached through bribery laws. The Article traces the evolution of the anti-corruption interest in the
Supreme Court's decisions beginning with Buckley v. Valeo. These decisions give added impetus to the considerations underlying anti-gratuities statutes. From Buckley onward, the Court has treated preventing the appearance of corruption as an interest more or less equal to preventing quid pro quo corruption itself. Yet once the concept of appearances is introduced, the entire notion of an anti-corruption interest acquires considerable
breadth. It is possible that a Supreme Court decision in Randall v. Sorrell will cut back on the scope of the anti-corruption interest in the campaign finance context. The Court is unlikely, however, to abandon completely its gratuity-like approach to campaign finance issues. Even if it does, that will only highlight the need for the gratuities statute. [Please note that a more complete version of this paper will be available after the Sorrell decision.]

" Proof of citizenship to vote affirmed"

See this report, which begins: "A federal judge refused Monday to order counties to accept new voter registrations without the proof of citizenship mandated by Proposition 200."

Would Bush v. Gore Have Looked More Respectable of CJ Roberts Authored It?

So suggests E.J. Dionne:

Consider how Roberts's approach contrasts with what the court did in Bush v. Gore , the 2000 decision that made George W. Bush president. Justices David Souter and Stephen Breyer were desperately seeking consensus. They agreed with the pro-Bush judges that the recount in Florida should be conducted under uniform standards. But they insisted that Florida be given a chance to have the recount.

The court's narrow and -- let's call it what it was -- partisan majority told Souter and Breyer to get lost. Five justices wanted to end the thing and make Bush president. Imagine how much bitterness would have been avoided (and how respect for the rule of law would have been enhanced) if the court had instead sought, in Roberts's words, "greater coherence and agreement about what the law is."

No one can know how consistently Roberts will apply the principles he laid out in his Georgetown speech. The straight 5-to-4 ideological split last week on police searches was not encouraging. But if Roberts lives up to his Georgetown principles, he will justify all the votes cast for his confirmation by moderates and liberals. More important, he will win a place in history as the chief justice who ended the judicial wars.

The Georgia v. Aschroft Fix, Becker, and Bauer

Following up on this post linking to Bob Bauer's paper on Georgia v. Ashcroft and asking questions about the meaning of the Georgia v. Aschroft "fix" in the current VRA renewal bill, I posed two hypotheticals on the election law listserv:

As many people on the list know, current section 5 provides that the DOJ cannot grant preclearance to a change in a voting procedure unless the jurisdiction can show that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title."
The proposed revision to section 5 would further define the applicable standard to explain that

"Any voting qualification or prerequisite to voting, or standard practice or procedure with respect to voting that has the purpose of or will have the effect of diminishing the ability of any citizens of the United States on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), to elect their preferred candidates of choice denies or abridges the right to vote within the meaning of subsection (a) of this section."

So here are my two hypotheticals. I thought it would be useful to hear from list members whether the DOJ should grant preclearance under (a) the Beer standard (pre-Georgia v. Ashcroft);
(b) the current Georgia v. Ashcroft standard; and
(c) the proposed revision to section 5.

Discussion of these hypotheticals among list members might clarify both existing law (i.e., what does Ga. v. Ashcroft mean) and the meaning of the proposed revision.

Hypo 1: A jurisdiction's old redistricting plan had one majority-minority district. The new plan it submits for preclearance has no majority minority districts, but creates two "influence" districts. Should the DOJ grant preclearance?

Hypo 2: In a jurisdiction with racially polarized voting, under the existing plan white-preferred candidates were elected in 11 of 12 districts. The new districting plan it submits for preclearance creates a second majority minority district, so that white preferred candidates are elected in only 10 districts now. Should the DOJ grant preclearance?

If the answer is 'it depends' or 'we need more information,' what does it depend on and what more information would we need?

Finally, it is possible that Hypo 1 and Hypo 2 are the same jurisdiction (i.e., an existing jurisdiction with 1 majority-minority district). Is it possible that preclearance cannot be granted for either change?

David Becker gave his answer and this follow up to my additional questions. In his answer, David set forth his view of what motivated black Georgia legislators to support the redistricting plan in Georgia v. Ashcroft. Bob Bauer has now responded. The end of Bob's post reproduces David's original answer to me in a more readable form.

"Lame duck still wields gavel, clout"

The Hill offers this profile of Rep. James Sensenbrenner, which mentions is role in pushing through the Voting Rights Act renewal amendments before his term expires.

"Access to voting basic to democracy; OUR OPINION: HOUSE SHOULD RENEW KEY PROVISIONS OF VOTING RIGHTS ACT"

The Miami Herald offers this editorial.

"Critics: State not ready for voter ID law"

See this report from Georgia.

"'A White Individual;' How the Voting Rights Act promotes racial polarization."

The Wall Street Journal offers this editorial.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org