Legislation Class Notes 2/4/04


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 Austin, but now writes for the majority.  O’Connor had opposed any broader form of corruption than the “magic words”.  Her turn changed the whole dynamic of the court.  Perhaps her change in opinion reflected changed realities.


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?


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