Usually Members of Congress compete with each other to claim the mantle of “pro-law-enforcement politician.” But when it comes to laws that might be used by prosecutors to hold Members of Congress accountable, the House leadership’s pro-law-enforcement stance apparently flags.
That is the message being sent by its decision to strip out the anti-corruption provisions included by unanimous vote in the Senate-passed Stop Trading on Congressional Knowledge Act. These provisions should be restored in a House-Senate conference committee on the bill.
The bipartisan amendment, sponsored by Sens. Patrick Leahy (D-Vt.) and John Cornyn (R-Texas), responds to points raised by the Supreme Court about the illegal gratuities (gifts to public officials to curry favor) and honest services (a scheme to defraud the government through unethical conduct and self-dealing) statutes. The House Judiciary Committee already unanimously approved a similar measure by Reps. Jim Sensenbrenner (R-Wis.) and Mike Quigley (D-Ill.).
Without these changes, prosecutors seeking to root out public corruption and convict public officials who accept gifts and favors from private parties will remain seriously impeded.
The head cheerleaders for this effort to deep-six the anti-corruption provisions are the National Association of Criminal Defense Lawyers and the Heritage Foundation, which claim that the legislation was not “getting traction on its own.” That is a strange description of bicameral, bipartisan provisions reported out of committee in both the House and Senate. Ninety-nine percent of bills never get that far.
Heritage headlines its opposition as the “over-criminalization” and “over-federalization” of politics. The claims are unfounded and misleading.
The anti-corruption provisions respond appropriately to the flaws cited by the Supreme Court. In the case of the honest services statute, the Leahy-Cornyn provisions replace a very general statute with a more carefully worded one that gives public officials “clear notice as to when their conduct runs afoul of the law.” To violate these provisions, a public official must “knowingly fail to disclose an interest required to be disclosed by the relevant jurisdiction’s laws or rules” and “must act intentionally to benefit the financial interest that had been covered up.” In other words, there is a clear intent test that ensures any violation has to be willful and knowing.
The fixes to the illegal gratuities statute are even more important because this statute was once a crucial anti-corruption arrow in the prosecutor’s quiver — a key corollary to the federal bribery statute, preventing officials from accepting gifts and favors given “for or because of” official acts in circumstances where the explicit quid pro quo required for a bribery conviction is not involved.
Gratuities given to government officials present two dangers. First, they can bias an official and distort his ability to execute the duties of office impartially. Despite contrary claims, politicians and other officials have testified that some sense of obligation is inevitably created — and that’s not counting those without pure intentions in the first place.
Second, regardless of a gratuity’s effect on the recipient’s discharge of official duties, it can create an appearance of impropriety that undermines public confidence in government.
Such problems are not simply theoretical. Until the case was reversed by the Supreme Court, former Secretary of Agriculture Mike Espy was convicted of taking about $6,000 worth of gratuities from a large agricultural interest, including tickets to the U.S. Open tennis tournament, luggage and meals. In 1988, then-Rep. Mario Biaggi (D-N.Y.) was convicted of violating the gratuities statute by accepting lavish vacations and spa treatments in exchange for using his influence to pressure city and federal officials to make favorable accommodations for a ship company that was a major client of a fellow politician’s insurance agency.
Without an operational illegal gratuities statute in place, these egregious, willful violations involving items of great value escape criminal prosecution and are simply treated as administrative violations of gift rules penalized with a relative slap on the wrist.
An effective gratuity statute is the last bulwark precluding a Member from facing no criminal repercussions for accepting cash rewards for performing legislative favors that fall short of “formal” actions such as roll-call votes. The Leahy-Cornyn provisions provide a defense against these perils to our system of democratic government.
With Congress’ approval rating hovering around 10 percent, passing these much-needed changes to our anti-corruption laws would send a message that Members do not see themselves as above the law. House leadership, instead of claiming to have passed a “stronger bill,” should reverse course and allow the provisions to be restored in conference.
Without these changes, public officials intent on enhancing their lifestyle by accepting gifts, money and services from interested parties will continue to have no fear of criminal prosecution. Such an outcome will worsen the “pay to play” atmosphere on Capitol Hill and in statehouses, city halls and government offices across the country.
Meredith McGehee is policy director of the Campaign Legal Center and heads McGehee Strategies, a public interest consulting business.