High Court Must Clarify Bribery Laws

Monday, 13 Feb 2012 12:28 PM

By George Will

Share:
  Comment  |
   Contact Us  |
  Print  
|  A   A  
  Copy Shortlink
All elected officials, and those who help finance elections in the expectation that certain promises will be kept — and everyone who cares about the rule of law — should hope the Supreme Court agrees to hear Don Siegelman's appeal of his conviction.

Until the court clarifies what constitutes quid pro quo political corruption, Americans engage in politics at their peril because prosecutors have dangerous discretion to criminalize politics.

Siegelman, a Democrat, was elected Alabama's governor in 1998 and was defeated in 2002. In 2006, he and a prominent Alabama businessman — Richard Scrushy, former CEO of HealthSouth — were convicted of bribery. Here is why.

As governor, Siegelman advanced a ballot referendum to create a state lottery with revenues dedicated to education. After Scrushy raised and contributed $250,000 to the lottery campaign, Siegelman appointed him — as three previous governors had done — to a healthcare-related state board, three members of which are required by law to be healthcare professionals, and all members of which serve without pay.

The lottery referendum lost, leaving the Democratic Party with a campaign debt. Siegelman and a wealthy Alabamian guaranteed a loan to pay it off, but Siegelman and others raised sufficient money — including another $250,000 from Scrushy through his company — to retire it. Note that half of the contributions involving Scrushy came after his appointment to the board.

Now, it is not unreasonable to suppose that, before Scrushy's first contribution, he hoped to ingratiate himself with the governor, that he hoped to be reappointed to the board, and that Siegelman appointed him at least partly because of gratitude. But was this bribery?

A jury said yes and Siegelman was sentenced to seven years in prison. He was released after nine months, pending his appeal, which turns on the contention that due process is denied when the law does not give due notice of proscribed behavior and thereby circumscribes prosecutorial discretion.

Siegelman argues that political contributions enjoy First Amendment protection, and seeking them is not optional for a politician in America's privately funded democracy.

Furthermore, elected officials must take official acts; some will be pleasing or otherwise beneficial to contributors. (See Solyndra.) Often this is nothing more than keeping campaign promises: People contribute because they endorse a candidate's agenda.

One circuit court (Judge Sonia Sotomayor writing) has held that to establish bribery involving political contributions requires proof of an "explicit" quid pro quo, meaning "an express promise." Indeed, the Oxford English Dictionary defines "explicit" as "stated clearly and in detail, leaving no room for confusion or doubt."

Another circuit court, however, has held that "explicit" does not mean an "express" or actually and clearly stated promise that an official action will be controlled by a contribution. Rather, "explicit" quid pro quo can mean only a state of mind inferred from perhaps suspicious circumstances.

But if bribery can be discerned in a somehow implicit connection between a contribution and an official action, prosecutorial discretion will be vast. And there will be the political temptation to ascribe unspoken but criminal mental states to elected officials.

The Supreme Court can circumscribe this dangerous discretion by affirming the principle that the "quid pro quo" standard for bribery requires proof, not a mere inference, of an actual communication. In the law’s current contradictory condition, the line is blurry between the exercise of constitutional rights and the commission of a crime.

Politics in a democracy is transactional. Candidates routinely solicit the support of interest groups, from unions to business organizations to environmental and other advocacy factions. ("If you vote for me, I will do X for you.") And many such groups solicit the solicitousness of candidates. ("If we support you, will you do Y for us?")

It is not uncommon for wealthy individuals to support presidential candidates lavishly, if not for the purpose of becoming ambassadors then with the hope that the president-elect will show gratitude for their generosity.

The Washington Post of Jan. 19, 2011, reported ("Ambassadorial openings for open wallets") that President Obama’s political appointees, as opposed to career diplomats, had received 30.05 percent of ambassadorial posts, just below the 30.47 average of the previous five presidents.

In 2009, a bipartisan amicus brief by 91 former state attorneys general urged the Supreme Court to use Siegelman's case to enunciate a clear standard for establishing quid pro quo bribery.

Today's confusion and the resulting prosecutorial discretion chill the exercise of constitutional rights of political participation, and can imprison people unjustly.





© 2014 Newsmax. All rights reserved.

Share:
  Comment  |
   Contact Us  |
  Print  
  Copy Shortlink
Around the Web
Join the Newsmax Community
Please review Community Guidelines before posting a comment.
>> Register to share your comments with the community.
>> Login if you are already a member.
blog comments powered by Disqus
 
Email:
Retype Email:
Country
Zip Code:
 
Hot Topics
Follow Newsmax
Like us
on Facebook
Follow us
on Twitter
Add us
on Google Plus
Around the Web
You May Also Like

GOP Candidate Challenges Calif. Establishment

Thursday, 24 Jul 2014 09:24 AM

Today, California is a one-party state: Democrats have 2-1 majorities in both legislative chambers and 40 of 55 members  . . .

Supreme Court Shoots Down Progressives

Monday, 07 Jul 2014 11:20 AM

Twice last week the court played its indispensable role as constable, policing portions of this forest where progressivi . . .

Majority of Native Americans Not Offended by Redskins

Monday, 30 Jun 2014 09:44 AM

Amanda Blackhorse, a Navajo who successfully moved a federal agency to withdraw trademark protections from the Washingto . . .

Most Commented

Newsmax, Moneynews, and Independent. American. are registered trademarks of Newsmax Media, Inc. Newsmax TV, NewsmaxWorld, NewsmaxHealth, are trademarks of Newsmax Media, Inc.

 
NEWSMAX.COM
America's News Page
©  Newsmax Media, Inc.
All Rights Reserved