Is It Time to Amend U.S. Domestic Anti-Bribery Statutes?

Last month’s hung jury in the trial of New Jersey Senator Robert Menendez, coming hard on the heels of appellate court decisions to vacate the convictions of former U.S. Congressman William Jefferson and New York state legislators Dean Skelos and Sheldon Silver, has increased public attention to domestic U.S. anti-bribery laws—and the Supreme Court’s interpretation of those laws. As Professor Zephyr Teachout puts it, the Court, beginning in the 1999 case Sun-Diamond Growers and continuing up through last year’s decision in McDonnell, has steadily “hollowed out” U.S. anti-bribery laws, making it much more difficult to convict “anyone but the most inept criminals.”

Now, some of the recent commentary, particularly on the impact of the McDonnell case, may overstate things a bit. As Maddie pointed out in a recent post, the fact that the Skelos and Silver convictions (and, she might have added, the Jefferson conviction) were vacated in light of McDonnell doesn’t necessarily imply that the conduct alleged in those cases is now legal. Rather, the appellate decisions held that the jury instructions were improperly phrased, and left the door open for a retrial (which will occur in these other cases, even though the government declined to retry McDonnell). And we don’t really know how much of an effect the Supreme Court’s decision in McDonnell or other cases affected the jury’s inability to reach a verdict in Menendez; it’s possible that even with a jury instruction identical to the one found deficient in McDonnell, some of the Menendez jurors would have voted to acquit. All that said, there are certainly good reasons for concern about the seemingly narrow scope of U.S. anti-bribery law.

Some of this blame, as Professor Teachout persuasively argues, can be laid at the feet of the Supreme Court. Indeed, I argued that McDonnell’s conviction should have been affirmed, and criticized the Court’s unanimous decision to vacate it. That said, I do think there’s an argument in favor of the Supreme Court’s ruling in McDonnell, at least if the holding is read narrowly as concerning the phrasing of the jury instructions. Likewise, in Sun-Diamond Growers, the Court’s holding is actually quite plausible as a reading of the unlawful gratuities statute. (The Court held that a conviction under this statute, which prohibits corruptly giving anything of value to a public official “because of any official act” performed by that official, requires the government to show a connection between the gift and a specific official act, rather than relying on the more general claim that the recipient is in a position to make decisions that affect the giver’s welfare. The Court’s interpretation of the statutory language, while contestable, is certainly reasonable.)

Moreover, if we’re looking for an institution to blame for the current state of U.S. anti-bribery law—or to lobby for improvements in that law—the Supreme Court is perhaps not the only target. There’s also the U.S. Congress, which could, and arguably should, amend the hodge-podge of anti-bribery laws to fill some of the gaps that we find in current law, as interpreted by the Supreme Court. After all, though the Court has dropped occasional troubling hints about possible constitutional concerns with a broad reading of the anti-bribery statutes, most of the Court’s rulings in this area, in contrast to the related but distinct campaign finance context, are statutory rather than constitutional. And that means that Congress could conceivably step in to fix the problem. Continue reading

If Voters Hate Corruption, Why Do Elected Politicians Resist Anticorruption Reform? Lessons from South Dakota

If U.S. voters dislike corruption so much, why don’t U.S. politicians see anticorruption as a winning issue—or at the very least feel more pressure to act aggressively against the corruption that voters claim to hate? This question, which has been explored on this blog before, is interesting to consider in the context of recent developments in South Dakota. South Dakota is considered to be one of the most corrupt states in the U.S., and in recent years has suffered through several major public corruption scandals, including massive misappropriations after the state privatized its EB-5 visa program, and the theft of over a million dollars earmarked for scholastic grants for the state’s American Indian population. In the past, although some Democratic state representatives had introduced bills to crack down on corruption, these measures failed in largely party-line votes in South Dakota’s Republican-dominated state legislature. Yet South Dakota, like many U.S. states, has a ballot initiative process that empowers voters to approve new laws by popular referendum. Last November, South Dakota voters used this process to approve Initiated Measure 22 (IM-22), also known as the “South Dakota Anti-Corruption Act.” While IM-22, despite its title, is not a direct anticorruption bill—its focus was on reforming campaign finance and lobbying—the message from the South Dakota voters was clear: they saw corruption as a problem and wanted to take measures to combat it.

Yet after the referendum passed, Republican lawmakers immediately took steps to halt the new rule. Within two weeks, 25 Republican South Dakota lawmakers brought suit against the state, arguing that the ethics commission created by the referendum violated the state’s constitution, and they succeeded in getting a temporary injunction against the new rules. Ultimately, the South Dakota State Senate struck down the law, using a provision of state law that allows the state legislature that repeals a referendum. Thus elected stood in direct opposition to an attempt to combat corruption enacted through a popular democratic initiative. Moreover, events in South Dakota reveal that some of the more conventional explanations that have been offered—including by previous analyses on this blog—are at best incomplete.

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Who Cares How Madison and Hamilton Defined “Corruption”?

We’ve had a few posts in recent weeks on Fordham Law Professor Zephyr Teachout’s ultimately unsuccessful, but surprisingly effective, campaign for the New York governorship (see here and here). Teachout’s campaign has had the side effect of increasing the attention to her scholarly work, most notably her recent book Corruption in America.  Rick has already posted a more general discussion of Teachout’s major thesis regarding the allegedly corrupting effects of money on American democracy (and a follow-up yesterday). I want to touch on a somewhat narrower point, but one that has attracted a great deal of attention: Teachout’s claim that the people who framed and ratified the U.S. Constitution had a much broader understanding of the meaning of “corruption” than is reflected in contemporary U.S. Supreme Court decisions on campaign finance. (I should acknowledge up front that I have not yet had the opportunity to read Teachout’s book, though I have read her earlier article making substantially the same point, as well as an excerpt from the book posted online.)

The basic argument, which Teachout persuasively documents, is that for the founding generation — including leading members like James Madison, Benjamin Franklin, Alexander Hamilton, George Mason, and others — the term “corruption” had a much broader meaning than the exchange of money or other material benefits for official acts; the term instead included an institution’s “improper dependence” on some outside party. My colleague Larry Lessig made this argument the basis of an amicus brief he submitted to the Supreme Court in the McCutcheon case. In his post discussing the brief, Lessig asserts that the evidence of how the term corruption was used in the Founding generation “suggest that only a non-originalist could support the idea that ‘corruption’ refers to ‘quid pro quo’ corruption alone.”

I’m not sure I can improve on Jill Lapore‘s assessment of Teachout and Lessig’s evidence about the historical usage of corruption: “This isn’t uninteresting, but it’s not especially helpful, either.” I agree wholeheartedly. At the risk of belaboring the issue (about which I’ve written before, in the context of the McCutcheon case), let me say a bit more about why I think the evidence that Madison, Hamilton, and other members of the Founding generation used “corruption” in a broader sense is (mostly) irrelevant to contemporary discussions of campaign finance and other issues. Continue reading

Is Corruption Destroying American Democracy? Zephyr Teachout’s Corruption in America

Fordham University Law Professor Zephyr Teachout earned a place of distinction among anticorruption activists for making the fight against corruption the centerpiece of her spirited campaign to oust the incumbent in New York’s September 9 gubernatorial primary (as well as a good deal of attention on this blog, click here and here).  Her effort also deserves special recognition in academia: surely no other professor has produced evidence to undercut her own academic work so fast as Professor Teachout. Appearing days before the primary, her Corruption in America: From Benjamin Franklin to Citizens United contends that large private donations to political candidates so favor candidates supported by the wealthy that the future of American democracy is at risk.  Yet while preliminary figures suggest the well-known, well-organized incumbent outspent her by somewhere between 40 to 50 to 1, she did surprisingly well, polling 180,336 votes to the incumbent’s 327,150.  If money so dominates American political campaigns, it is hard to see why Professor Teachout got so far with so little. Of course, she did lose the election.  More to the point, even if she had won, her claim that money is overwhelming American elections cannot be dis-proven by a single example.  It may be that her race was an outlier and that most of the time, money does talk.  So what does the accumulated research on the influence of money on American elections show? Continue reading

Why Didn’t Teachout Win the New York Gubernatorial Primary?

In a recent post, Matthew wrote about the New York gubernatorial Democratic primary between incumbent Andrew Cuomo and self-proclaimed anticorruption candidate Zephyr Teachout. He laid out several reasons why even progressive voters who care about combating corruption could rationally cast a vote for Cuomo over Teachout. Since Matthew’s post, primary polls have closed and, indeed, unofficial results show Cuomo taking the Democratic nomination in a landslide (though not as sweeping a landslide as expected). Matthew’s predictions have been borne out, but as this post will explain, likely for different reasons than those he posited. Continue reading

Why Rational Anticorruption Voters Might Not Support the Anticorruption Candidate

As some readers of this blog are likely aware, Fordham law professor Zephyr Teachout is challenging the Andrew Cuomo, New York’s incumbent governor, in the state’s Democratic primary, to be held tomorrow. One of her main campaign themes is corruption: Her campaign emphasizes corruption in the Cuomo administration both in the narrow sense of raising concerns about unethical and possibly unlawful conduct in New York state government (as well as Governor Cuomo’s controversial decision to disband the Moreland Commission, which had been looking into these issues), and also “corruption” in the broader sense of excessive influence of wealthy interests and the distorting effect this has on politics. Teachout herself concedes that if she wins it would be the “upset of the century,” and indeed most political prognosticators give her virtually no chance of winning. Why not?

It’s true, of course, that Teachout has no prior experience in electoral politics and is up against a savvy and well-funded incumbent. But there’s a bigger problem for her — and for any insurgent anticorruption candidate or party — that derives from the nature of the U.S. electoral system that Nobel Laureate Roger Myerson identified over two decades ago in a technical game theory paper on how electoral institutions affect the success or failure of insurgent anticorruption candidates. Although Myerson’s analysis does not correspond perfectly to the New York primary (for reasons I will explain in a moment), it is nonetheless enlightening–not only for the challenges faced by Teachout, but for anticorruption parties more generally. Continue reading