Monday, November 28, 2005
The recent conspiracy charge involving Michael Scanlon focuses on the interactions of Jack Abramoff ("Lobbyist A") and Representative Bob Ney ("Representative #1") that involve a number of campaign contributions and gifts in exchange for legislative acts, including placing an item in the Congressional Record. Recent media reports assert that other Congressional officials, including Senator Conrad Burns, Rep. James Doolittle, and Rep. Tom DeLay, are the focus of the investigation in which large amounts of campaign contributions flowed from the Indian tribes represented by Abramoff and Scanlon to the campaign committees of various elected officials. Money is, of course, the "mother's milk of American politics" according to an old adage, and while much campaign finance reform focuses on the corrupt influence of money, to this point criminal prosecutions of elected federal officeholders for payments received by their campaign committee's have been few.
One substantial hurdle to prosecuting an elected official for accepting campaign contributions related to legislative action is that those contributions are essentially designed to achieve that very purpose. In McCormick v. United States, 500 U.S. 257 (1991), a Hobbs Act prosecution for extortion "under color of official right" that is essentially bribery, the Supreme Court stated the following:
Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, "under color of official right." To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation. It would require statutory language more explicit than the Hobbs Act contains to justify a contrary conclusion.
This is not to say that it is impossible for an elected official to commit extortion in the course of financing an election campaign. Political contributions are of course vulnerable if induced by the use of force, violence, or fear. The receipt of such contributions is also vulnerable under the Act as having been taken under color of official right, but only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. In such situations the official asserts that his official conduct will be controlled by the terms of the promise or undertaking. This is the receipt of money by an elected official under color of official right within the meaning of the Hobbs Act.
Members of Congress are subject to prosecution under 18 U.S.C. Sec. 201, which prohibits both bribery and unlawful gratuities. For bribes, the government must establish a quid pro quo arrangement, the very issue in McCormick that the Court stated required proof that the quid pro quo was "explicit." While a later decision in Evans v. United States, 504 U.S. 255 (1992), softened McCormick's holding a bit, for campaign contribution cases the government would have to meet a higher threshold than merely showing that the contributor hoped (or even expected) the elected official to take a position favorable to the contributor, and that the representative knew of the reason for the contribution.
Another problem prosecutors would face in pursuing charges against Congressmen -- but not their legislative staff -- is the Speech or Debate Clause, which provides that "for any Speech or Debate in either House, they shall not be questioned in any other Place." (Art. I, Sec. 6) In United States v. Helstoski, 442 U.S. 477 (1979), the Supreme Court stated, "The Court's holdings in United States v. Johnson and United States v. Brewster leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution under § 201." In rejecting the government's argument that it should be permitted to introduce evidence of legislative acts to establish the Congressman's motive in taking money, the Court held:
We therefore agree with the Court of Appeals that references to past legislative acts of a Member cannot be admitted without undermining the values protected by the Clause. We implied as much in Brewster when we explained: "To make a prima facie case under [the] indictment, the Government need not show any act of [Brewster] subsequent to the corrupt promise for payment, for it is taking the bribe, not performance of the illicit compact, that is a criminal act." A similar inference is appropriate from Johnson where we held that the Clause was violated by questions about motive addressed to others than Johnson himself. That holding would have been unnecessary if the Clause did not afford protection beyond legislative acts themselves.
The Court did hold in United States v. Brewster, 408 U.S. 501 (1972), that promises to perform a legislative act in the future could be introduced to show the illicit agreement because the actual performance of the act is irrelevant to proof of the bribe. In other words, the fact that a legislator engaged in an act in Congress covered by the Speech or Debate Clause would be excluded, but the agreement to do so would be admissible.
For any prosecution of Rep. Ney, which is a definite possibility from reading the criminal information of Scanlon, the government will face greater evidentiary hurdles than it does in other public corruption cases against state and local elected officials, who are not protected by the Speech or Debate Clause (including state constitutional provisions). See United States v. Gillock, 445 U.S. 360 (1980).
If prosecutors decide to pursue charges against members of Congress, the standard for proving a bribe will be high if the payments are identified as campaign contributions. Moreover, any case involving legislative action likely will implicate the Speech or Debate Clause, an issue of considerable sensitivity on separation of powers grounds that will likely generate pre-trial appeals, slowing the prosecution even more than usual. (ph)