Anticorruption advocates roundly condemned the Supreme Court for its May 7 Bridgegate decision overturning two New Jersey officials’ corruption convictions for conduct even their lawyer admits was wrong (examples here, here, and here). But as explained in a previous post on Bridgegate, so named because the case involved closing bridge entry ramps to create traffic jams, the Court is not to blame for the result. The immediate cause was Bridgegate prosecutors pushing beyond the limits the Court has ruled current law sets on their power to police state and local corruption.
It is Congress, though, that bears the lion’s share of the blame for the outcome. Congress needs to clarify when state and local officials can be prosecuted under federal law for corruption. Until it does, more Bridgegates, cases where the Court rebuffs federal prosecutors’ expansive view of their power to prosecute state and local corruption, are in store. As with Bridgegate, the result will be that corrupt officials get off scot free while the American public is left to question their government’s commitment to fighting corruption.
If there is any good news to be had from the Trump Administration’s flouting of ethical norms, it is that Congress will almost surely take up legislation tightening federal anticorruption law. That would provide an opportunity for it to at last accept the Court’s repeated invitations (here, here, and here) to define the federal government’s role in combatting state and local corruption.
The place for Congress to begin is with the facts. The justification for federal prosecution of corrupt state and local officials is that state, county, and city prosecutors have failed to do so, that they have come to accept corruption as the way business is done. The evidence offered in support is anecdotal, media reports of some corrupt scheme or official who has escaped prosecution.
The plural of anecdote is not data. And data is what Congress needs to evaluate whether local prosecutors are falling down on the job. Congress should direct that data on state-level corruption prosecutions be collected. What does the data – a combination of state court records, actions by state and local ethics commissions, opinion surveys, press accounts, and interviews with key informants – show? Are there jurisdictions where public corruption is going unchecked? Where election or appointment to office comes with a license to rob citizens blind?
If there are such places, the first question is whether these officials are escaping punishment for bribery. The reason: The Supreme Court has read current law to permit federal prosecution of bribery, and the latest data shows they have. In 2018 federal prosecutors charged 256 state and local officials with bribery and convicted 147. Perhaps these numbers are too low. Perhaps Michigan Law Professor Leah Litman is correct that a significant number of state and local officials are getting away with bribery.
If so, what does this say about the efficacy of federal prosecution? Why aren’t more cases being brought? Is it a lack of resources? Political pressure?
Or could it be that three decades plus of federal prosecutions have had an impact? That the steady enforcement of antibribery laws over an extended period of time does indeed deter bribery?
Bribery is a crime under the laws of all 50 states and can thus be prosecuted in either federal or state court. Congress needs to understand how this joint authority has been shared between federal and local prosecutors. When allegations of bribery surface, what factors are weighed in deciding whether federal or local prosecutors will take the lead? Or do federal prosecutors simply muscle aside local prosecutors as reports on Bridgegate (here and here) suggest?
Bribery is not the only offense that is a crime under both federal and state law. In a Department of Justice-sponsored study, former federal prosecutor and now Columbia law professor Dan Richman reviewed how decisions on who will prosecute dual jurisdiction offenses are made. In most cases the relevant U.S. Attorney and his or her local counterpart negotiate the resolution, and often federal prosecution is the result. As Richman explains, federal prosecutors have greater resources, more access to electronic surveillance, and the sentences for a federal violation are usually stiffer. Another factor he cites is that federal prosecution allows local prosecutors to duck hard cases.
More resources, tougher sentences, and avoidance of hard cases likely explain why it is that most cases of state and local bribery are handled by federal prosecutors. Whatever the advantages of federal prosecution, however, it has come at a cost. Federal prosecution of local bribery, Richman writes, “has probably substantially diminished” the pressure on local prosecutors to pursue bribery cases themselves. Federal prosecution not only relieves pressure, however. It makes it hard to build the capacity of local offices to take on corruption cases as well. Why would a talented young lawyer with an interest in fighting corruption join a local prosecution office if the action is with the feds?
Should it be federal policy to diminish the responsibility and capacity of the states to police corruption within their borders? The chain of accountability between local corruption and local prosecution is shorter and more direct than that between local corruption and federal prosecution. Congress should look for ways to strengthen that chain not weaken it.
At the same time, however, Congress cannot ignore the strong national interest in curbing state and local corruption. As several authors have argued (examples here and here), state and local corruption has spillover effects. It can retard interstate commerce and undermine citizen confidence in government at all levels. In an extreme, and admittedly unlikely case, it could threaten the Constitutions’ guarantee that every state shall enjoy “a Republican Form of Government.”
The 2009 Hate Crime Prevention Act suggests one way to balance these competing considerations. The statute gives local prosecutors the responsibility to pursue hate crimes unless i) there are legal reasons why federal prosecution is to be preferred or ii) state authorities ask the federal government to take over prosecution. In every case, the Attorney General or a designee must certify that federal prosecution will advance the public interest and serve the ends of justice. This arrangement, as then Attorney General Holder observed, gives the states the primary authority, and makes them primarily accountable, while preserving a federal role as a backstop.
Sorting out who has priority to prosecute state and local corruption is one issue Congress needs to address. A second is illustrated by the first case where the Court considered federal prosecutors’ power to prosecute state and local corruption, McNally v. United States.
After the 1974 gubernatorial election, James Gray, a newly installed Kentucky official, told the agent then writing the state’s workers compensation policy that he could continue as the state’s agent provided he shared his commission with other insurance agencies, in one of which Gray was part-owner. What Gray proposed violated no Kentucky law. Commission rates were fixed so Kentucky was not out money from the sharing arrangement, and Kentucky law did not require he disclose his interest in the insurance agency.
Nonetheless, federal prosecutors indicted Gray under the federal mail fraud statute. Their theory was he had deprived Kentuckians of property, “their intangible rights to honest and impartial government,” by failing to reveal his interest in the agency receiving a share of the commission. A jury convicted and the Sixth Circuit affirmed. But the Court reversed, ruling that neither the text nor the legislative history of the mail fraud statute showed Congress meant it to be used to set “standards of disclosure and good government for local and state officials.”
To federal prosecutors, Gray had committed a crime, undisclosed self-dealing in violation of the fiduciary duty that as a public official he owed Kentuckians. To many in Kentucky, including presumably a majority of state legislators, Gray had simply enjoyed the spoils of public office.
The gap between how prosecutors and Kentuckians viewed Gray’s conduct closed not long after McNally was decided. The state legislature enacted Kentucky Revised Statute 11A.040 making it a felony punishable by anywhere from one to five years in prison for a public official to be involved in any transaction on behalf of the state “with any business in which he or a member of his family has any interest greater than five percent.” It also enacted legislation requiring senior officials to “file a statement of financial disclosure… no later than April 15 for the previous calendar year or within 30 days of termination of employment.”
Kentucky is not the only state to tighten its ethics and anticorruption laws in recent years. Today, all states prohibit conflicts of interest, and all but Idaho and Michigan require senior officials to make regular financial disclosures with Michigan likely to require it soon. Still, anticorruption advocates complain many state ethics and anticorruption laws are seriously flawed. The Coalition for Integrity’s 2018 assessment of state ethics laws reported that restrictions in 22 states on gifts to elected officials are “minimal,” and in 2016 Northeastern’s School of Journalism found most state financial disclosure laws did not require officials to fully disclose their finances.
How should Congress treat these differences? It could nationalize ethics and anticorruption law. It could write into law McNally prosecutors’ theory that undisclosed self-dealing by a public official is a federal crime. Or Bridgegate prosecutors’ view that a state official’s abuse of power is a federal offense. But where should it stop? With a statute replicating federal law? Or perhaps one even more restrictive on say receipt of gifts or political contributions from lobbyists?
In setting standards of good government for state and local government, Congress must take care not to lose sight of the fact that, unlike the federal government, state and local governments are not exclusively staffed by full-time professional bureaucrats, legislators, judges, and elected officials. Each is instead a mélange of full- and part-timers with, in many cases, volunteers serving on regulatory boards and commissions. One needn’t accept the argument that this makes subnational governments different in kind than the federal government to appreciate that the differences between the federal government and state and local governments would make nationalizing ethics and anticorruption law untenable.
Take financial disclosure, a favorite of anticorruption advocates. Should Congress force Idaho to follow the other 49 states and require elected officials to file yearly financial disclosure statements? Most elected positions are part-time, and it is surely reasonable for the state legislature to believe that a disclosure requirement would discourage qualified candidates from seeking office. It would again be reasonable for the legislature to believe that current law, requiring disclosure in any situation where the official could have a conflict of interest no matter how remote, is sufficient. After all, the Center for the Advancement of Public Integrity, although urging the state to adopt additional anticorruption laws, acknowledged in a 2018 review that the state “has not been a traditional corruption hotspot.”
Should Congress decide to extend federal prosecutors’ authority to more than just state and local bribery, a workable solution would be to follow the approach found in legislation proposed in 2011 to reverse the Court’s decision in Skilling v. United States. The Court there had again turned back prosecutors’ efforts to make an undisclosed conflict of interest a federal crime.
In response, bills were introduced in both Houses expressly authorizing federal prosecution of a state official for failing to disclose a conflict of interest. However, as Congressional Research Service’s Charles Doyle explains in a careful review, federal prosecutors could only bring a case when the defendant “knowingly conceals, covers up, or fails to disclose material information that he or she is already required by law or regulation to disclose” (emphasis supplied). The legislation thus did not impose any new ethical standard on the states; it only provided an additional way to enforce existing law.
New legislation could take the same approach, giving federal prosecutors authority to prosecute acts that state legislatures had already deemed corrupt. That would have eliminated any chance the Bridgegate defendants would have escaped prosecution. As the Court noted in its opinion, defendants had clearly violated New Jersey’s abuse of power statute. A law that combed the Hate Crimes Act prosecution provision with the state crime section of the 2011 legislation would have ensured Bridgegate defendants would not have walked. If local prosecutors had declined to pursue them, federal prosecutors could have.
Such a law would maintain what Justice Marshall long ago termed “the sensitive relation between federal and state criminal jurisdiction” while strengthening the national fight against corruption. What is Congress waiting for? Another Bridgegate fiasco?