Archive for Sunday, February 12, 2012

Alabama case could criminalize politics

February 12, 2012


— 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 health care-related state board, three members of which are required by law to be health care 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.

Politics in a democracy is transactional. Candidates solicit the support of interest groups, from 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.  

— George Will is a columnist for Washington Post Writers Group. His email address is


jafs 5 years, 11 months ago

Will's acceptance of the "transactional" nature of politics is a bit disturbing.

He describes a problem, without realizing it is a problem.

jhawkinsf 5 years, 11 months ago

I think Will is saying that the "problem" has been an accepted part of the political process for many years. Therefore, having one prosecutor in one state prosecute one politician gives that one prosecutor too much power to decide when the "problem" crosses the line from being an accepted part of the process and becomes criminal. Will is asking the Supreme Court to define where that line is so that all prosecutors will have guidance as to where the line is and not take it upon themselves to judge where the line is.

jafs 5 years, 11 months ago

Yes, but that's the problem, that it's an "accepted " part of the process.

As far as I'm concerned, it's not acceptable.

There is no version of trading money for favors that I find acceptable in politics.

jhawkinsf 5 years, 11 months ago

But it's been a part of every political system in every country, in every culture since the beginning of time. It's become as much a part of us as walking upright. I'd bet the old "I'll scratch your back if you scratch mine" system exists in a mountaintop monastery in Tibet. The question isn't can we eliminate it, because we can't. The question becomes how do we put acceptable limits on it.

ThePilgrim 5 years, 11 months ago

Lobbyists and supporters buy dinners, fly public officials all over (do you think certain Kansas officials in Congress fly home every weekend on their own dime?), and grease palms with special projects or political donations all the time. Why is anyone surprised? And now they want to go after it? Super PACs are deciding the GOP primaries (admit it). Obama will likely raise a record number of political contributions again, equaling more than the GDP of many countries, all without needing matching funds. Are we then surprised when they appoint certain folks or favor certain businesses? The system is broke folks. Let's get back to the way it used to be - many parties. And the number one winner became Pres and the number 2 became VP.

Ragingbear 5 years, 11 months ago

I got it! Here is how higher level politics will work. Whatever time you spend in office, you then have to spend twice that time in the maximum security wing at a federal prison.

Paul R Getto 5 years, 11 months ago

"Politics in a democracy is transactional. Candidates solicit the support of interest groups, from 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?”) " === Perhaps the most telling point in an excellent column. The Supremes need to make a narrow ruling on this one. If money is speech we are headed towards a prosecutorial nightmare in some jurisdictions if this can't be settled. Once again, Mr. Will, excellent points and a critical issue. Money and politics have been intertwined for centuries and this case needs to be heard.

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