Feb. 12, 2016 SIGN IN | REGISTER

Courts Settle Bribery, Contribution Questions

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.

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