A Question of Ethics

Courts Settle Bribery, Contribution Questions

April 24, 2012

Reprinted from Roll Call (April 24, 2012)

In two recent decisions, federal courts have answered questions from columns earlier this year. While both cases raised the prospect of significant changes to federal political law, the courts’ decisions ultimately left things much as they were.

The first question concerned an argument made by former Rep. William Jefferson (D-La.) in his appeal of convictions for multiple felonies for allegedly accepting bribes in exchange for performing constituent services. Jefferson argued that the trial judge had inaccurately instructed the jury regarding the law on bribery.

The federal bribery statute defines illegal bribery as soliciting or accepting something of value in return for “being influenced in the performance of any official act.” Jefferson argued that the trial judge erred in his instruction defining “official act” when he told the jury that it encompassed acts “clearly established by settled practice as part of a public official’s position.” The term “settled practice,” Jefferson contended, was too vague and broad to provide officials with sufficient notice of exactly what conduct was prohibited.

The government responded that the judge’s instruction did not use the term “settled practice” as a substitute for the statutory definition of “official act.” Rather, the judge was clarifying that an act can count as official even if it is not defined by law but is clearly established as part of an official’s position by settled practice.

A three-judge panel of the Fourth Circuit Court of Appeals agreed with the government. It said that the trial court’s instruction was “entirely consistent” with Supreme Court precedent. The court said that the instruction was not intended to supplement the statutory definition of official act. Rather, it was meant as a clarification, as the government had argued. The upshot of all of this is that the decision in the Jefferson appeal, which had the potential to expand or contract the scope of the federal bribery statute, left things much as they already were.

The second decision concerning a column from earlier this year involved a challenge to the federal ban on campaign contributions by government contractors. The Federal Election Campaign Act forbids campaign contributions to candidates for Congress and president by anyone who is negotiating or performing a contract with a federal agency. Early this year, a handful of contractors filed suit alleging that this prohibition violates the Constitution.

The contractors first argued that the ban violates the Equal Protection Clause because it treats them differently from other people who are similarly situated to them. For example, the contractors contended that they work closely with federal agency employees, performing many of the same tasks as the agency employees. Yet, agency employees are permitted to make contributions while the contractors are forbidden from doing so merely because they do their work for the agency under a contract instead of as an employee.

The contractors’ other argument was that the ban violates the First Amendment because it is not narrowly tailored to serve any legitimate public purpose. The problem with the ban, the contractors argued, is that it prohibits them from making contributions to candidates for president and Congress, even though the president and Members of Congress usually have no role in the awarding of federal contracts.

The government responded that the ban is a legitimate act of Congress that serves important government interests. Specifically, it minimizes the appearance of corruption and ensures that government contracts are awarded on merit, not political participation. Even though the president and Members may not directly award government contracts, they can still influence the contracting process.

As to the contractors’ claim that the ban violates the Equal Protection Clause, the government responded that federal laws treat groups differently all the time. That differing treatment does not violate the Constitution unless it improperly discriminates on the basis of some specially protected criterion, such as race or gender.

In a decision earlier this month, a U.S. District Court judge sided with the government. The judge said the ban does not violate the First Amendment because it is “closely drawn” to protect the integrity of the electoral system by ensuring that federal contracts are awarded on merit. “[T]here is a connection between federal elected officeholders and the awarding of contracts, albeit indirect,” the judge wrote, “that supports a finding that the ban is closely drawn.”

The judge rejected the Equal Protection Clause challenge as well, concluding that there is nothing unconstitutional about permitting contributions by federal agency employees but forbidding contributions by contracting employees. This distinction, the judge said, reflects a reasonable legislative judgment that contracting is particularly susceptible to quid pro quo arrangements, or at least the appearance of such arrangements.

In both cases, then, the biggest thing that the government may have had on its side was time. Jefferson, the Fourth Circuit noted, was challenging Supreme Court case law that had been on the books, unscathed, for decades. Meanwhile, the ban on contributions by government contractors, the District Court judge found, had been good law for 70 years. These obstacles proved too difficult to overcome.

© Copyright 2012, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.