Legislation
Class Notes
On
Friday, we ended class with upholding ban on receipt or expenditure of
abandonment of traditional quid pro quo view or exclusively quid pro quo view
of corruption: most transformative aspect of McConnell decision.
The
deal is that the Supreme Court is accepting a more subtle view of
corruption. It doesn’t have to be
extremely blatant to be dangerous. But
such an amorphous view is of concern to conservatives like Scalia and Thomas
who worry about the abridgement of First Amendment rights. Brudney also proposes that the decision is
more instrumental than purely doctrinal.
Electioneering communications
in McConnell
This
part of the opinion is relatively short within the majority opinion.
Since
Buckley, most observers thought that
the “magic words” requirement was a constitutional standard. In other words, the Court in Buckley limited the speech that can be
regulated to the “magic words” because if you regulate any more than that, you
would be infringing upon the First Amendment.
But
this case says that the “magic words” rule was a matter of statutory interpretation
rather than constitutional interpretation.
Because there is a new, clearer statute, you don’t need the magic words
anymore and there’s no First Amendment problem.
The
Court says that you can’t meaningfully distinguish between express advocacy and
issue advocacy. How come? The Court finds that the distinction has
become meaningless in practice. An ad
that gives a powerful statement about someone’s views on an issue doesn’t need
the words “vote for so-and-so” to be effective.
In fact, such ads might be more
effective without the “magic words”.
Justice
O’Connor joined Scalia and Kennedy in dissent in
Everyone
who argued for the BCRA in court argued that the soft money and electioneering
communications provisions should be seen as an integrated whole. Buckley,
by contrast, sort of “split the baby” and produced a statute that Congress hadn’t
really written. It ended up only
regulating contributions but not expenditures.
Those
are the two key features of the election regulatory landscape that the BCRA has
changed: it has imposed significant restraints on soft money and on political
ads.
Part
of the deal about the BCRA was that it wouldn’t apply to the elections of
2002. It wasn’t held up, however, while
it was in litigation.
An
independent expenditure is not coordinated with the party. If the party ends up running a bunch of ads
about why the Republican Party stands for “the values you should want in a United
States Senator” when there isn’t a nominee yet.
Constitutional protection on
the exertion of political pressure
When
we look at what bribery is, we must recall that the First Amendment protects
speech as well as the right to petition government for the redress of
grievances. Citizens are encouraged to
express intense viewpoints to their legislators. Also, legislators have absolute immunity from
being prosecuted for any crime. There’s
only so much that can be prohibited in the way of bribery.
There
is also the “nature of one’s theory of representation”. How far are we going to extend the criminal
law in terms of what we are prepared to inhibit? What is the value of interest groups? The trustee’s job is to figure out what the
best solution is. So far as interest
groups are pressuring me to come to a certain conclusion, I will have a broad
sense of what is impermissible pressure.
But the interest groups give the trustee information. The trustee can’t possibly know enough about
everything that’s going on in a complex legislative world. But they’re not good as pressure producers.
But
if you view legislators as agents, then you would have a different view of
political pressure. How do we deal with
endorsements? That’s a proxy for large
numbers of voters. As an agent, I don’t
have to figure out what’s the one undifferentiated common good. I can figure out just what voters want. We end up with different views of what is
acceptable or unacceptable political pressure.
We
still have to figure out what the elements of bribery are. What are they? Let’s look at the federal bribery statute.
There
is a public official. That’s who. What is the illegal thing that gets
transmitted? It’s anything of
value. What’s the relationship between
the thing of value and the illegal act?
There has to be an influence.
There has to be a corrupt intent.
That’s what has to go into a bribery conviction.
Let’s
look at the elements in a real-world context.
Say Davidson runs in a Democratic primary to run for an open House
seat. Davidson sits down with Evans, who
is thinking about running. Evans agrees
not to run for Congress if Davidson will help her run for the State
Assembly. But nobody’s a public
official.
Would
it be a bad idea for this conduct to be punishable under criminal law even if
the statute included it? Political
parties play a role in trying to coordinate the candidate selection
process. We may not want that to be
illegal. Maybe we don’t want members
within the party to fight it out against each other. So in that sense, maybe we don’t want a
candidate bribery statute.
Whether
you want such a statute may have a lot to do with the theory of representation
that you subscribe to.
What
about the “something of value” bit?
There are different things that might be offered to or received by
public officials. One thing might be
personal benefits to advance one’s personal wealth. But the harder case is political benefits, which are aimed at advancing the official’s
career as a public servant.
You
can’t want to prosecute taking something for political value if it’s an
essential way in which we’ve structured the political process. We encourage people to get endorsements. How can we criminalize that? It would seem that we need to read the “thing
of value” provision narrowly.
What
about stuff about aldermen? Uhhh…
Are
there any problems with the court’s stated standard for what is public service? What should you not enter into bargains with
others for?
What
is one of the key roles of legislators in this country? Who do the legislators represent when they
deal with administrative bureaucrats?
Presumably us.
This
is a remarkably broad standard! It’s a
standard run wild! You can’t give or
support your condition of receiving anything valuable, including legislators. It’s constituent service!
We
might not want to outlaw all log-rolling.
Log-rolling might actually involve a political benefit you would want in a bribery statute.
Where
do campaign contributions fit into this?
What
if you give a campaign contribution insincerely just to get personal benefits
for yourself through the government?