Constitutional Law Class Notes 2/4/04


Donuts and challenges


Say you’re looking at a donut.  Say the whole donut is the scope of what Congress indisputably could punish under its Art. I, § 8 powers.  Sabri’s own conduct would fall within the “hole”.  Pretend that the donut itself includes a set of cases covered by the statute which nonetheless are not covered by Congress power.  In other words, the points on the donut represent the cases were an as-applied challenge would win.



So for a given law, the Court is more likely to uphold it if most prosecutions that could be brought under the law are constitutional than if most such prosecutions would be unconstitutional, even if in this particular case it would be okay.


On the other hand, if a statute would usually be unconstitutional but it wouldn’t be in the present case, we might not want to let a particular rascal off the hook when other people will soon come before the Court who have really been wronged.


If the “onion ring” on the right gets so skinny that it disappears, it means that the statute is coterminal with the extent of congressional authority.  Every prosecution would be okay.  Sabri must show that there is at least some kind of donut or onion ring in existence.


Thus, there are two questions Sabri has to answer:


1.     Is § 666 ever unconstitutional?

2.     Should Sabri be allowed to kill the statute and get off the hook even though his own misconduct could properly (constitutionally) be punished?  Why should Sabri be able to win with respect to the “donut” when he’s in the “hole”?

a.      Furthermore, what percentage of the statute’s coverage is constitutional versus unconstitutional?

b.     How high does the percentage need to get in order to let the rascal Sabri off the hook on the basis of a facial challenge even though he would fail on an as-applied challenge?


The bigger the “donut” in relationship to the “hole”, the more sympathetic the Court will tend to be.


Recall the special rules and doctrines of the First Amendment.  If you’re in the hole, you have to prove that the statute in question is substantially overbroad.  The Court has never quantified this, though.  But you need more of a “fat donut” than an “onion ring” to prevail on an as applied.


One example of an application of the “substantial overbreadth” doctrine was the challenge to the electioneering communications “60-day rule” in McConnell.


So it ends up somewhat unclear why Sabri thinks he’s entitled to a facial challenge.  If you want more information on facial versus as-applied challenges, check out Edward B. Foley, “Narrow Tailoring” is Not the Opposite of “Overbreadth”, 2 Election Law Journal 457, 472-475 (2003).


Facial challenges are often frowned upon.  Judges don’t like criminal defendants to win when they could be legitimately punished.  The misdeed that Congress punished is properly punishable by Congress, so to let a criminal off the hook just because Congress was a little sloppy is unappealing.  But because we care so much about First Amendment rights, we don’t want people to self-censor even though they’re “in the donut”, saying stuff that Congress can’t touch.  So we’ll sometimes let people in the “hole” win for the sake of other folks.


Alternatives to § 666


How do we define the proper scope of congressional power in this area?  How can we pin down just how big the “inner circle”?


The way to mentally test the proper scope of congressional authority is to imagine both narrower and broader laws that Congress might have adopted rather than the one it actually adopted in § 666.  Then we think about whether one of these hypothetical alternative statutes would have been a good place to try the line.


Sabri demands that the law be written such that the only thing it covers is punishment of bribes made with the intent to get at federal funds.  Sabri wants to claim that that’s as far as Congress is entitled to go.  Congress appears to have gone a lot further than this.


The government, on the other hand, says that that’s not broad enough.  The government is not only concerned about having federal funds get into the hands of the briber.  The government is also worried that if it gives money for a purpose to a state or local agency, and that agency has an employee who accepts a bribe, a lot of other money will get dissipated and thus hurt the agency and in turn hurt the federal government’s program.


The federal government wants to say that we ought to have some kind of broader powers than merely punishing a briber trying to get federal funds.


What about punishing someone who bribes an administrator of a program that gets federal funds?  Consider the meat inspector/parks example again.


What about punishing someone who bribes someone who works for a government department or non-governmental organization that gets federal funds?  The difference between this and the actual statute is that it deals with government departments rather than entire governments.  Part of the problem with § 666 is that it covers, for example, the entire state of California.  California has a huge bureaucracy!  If any employee of the state of California anywhere takes a bribe, then it would seem like we can argue it’s necessary and proper to punish that employee.


But what about even broader laws?  It’s not just bribes that put federal funds at risk.  What if we also punish fraud or financial deceit?  What about punishing any dishonest act or statement?


The amicus brief suggests that it’s not much more far fetched that the government could punish adultery offered in connection with recipients of federal funds.


Sabri’s attorney will be asked at oral argument: “If this statute isn’t okay, what statute is okay?”  The Court wants to put the lawyer on a slippery slope and really see where the line should be drawn.


Examples are good!  They put concrete images in the mind of the deciding judge.  Cases are won or lost on concrete images and examples.


Is Congress entitled to be worried about the Minneapolis council member’s conduct because it’s concerned about the $23 million it has given the city?


Does Congress have a valid interest under its spending power and the Necessary and Proper Clause to be concerned about the eminent domain bribe and the 10% kickback bribe?


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