The decision is disappointing and seems to open the door to still more packing of minority voters into fewer districts so as to minimize the number of political races their votes will impact and thus diluting their political voice. It remains to be seen how this decision will influence the next round of redistricting and we will hope for the best. But it seems highly unlikely that this decision will not be harnessed for political gain at the expense of minority voters when district lines are redrawn following the 2010 census.

As our brief to the Court pointed out, the opportunity for, and incidence of, vote dilution does not begin at a threshold percentage. Instead, the brief argues, identifying violations of Section 2 and creating remedies for such violations should be governed by an "opportunity to elect" standard, which would analyze multiple local factors, including the geographic distribution of racial groups, and patterns of racially polarized voting and crossover voting.

When faced with the practical applications of this decision, many will find it hard to argue with the dissent of Justice Souter predicting a sad legacy:

…the plurality has eliminated the protection of Section 2 for the districts that best vindicate the goals of the statute, and has done all it can to force the States to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.

To read the amicus brief of the Campaign Legal Center in support of petitioners, click here.

To read the decision, click here.

March 2, 2009

Dear Chairman Leahy,

The Campaign Legal Center is a non-partisan Washington-based legal institute with particular expertise in governmental ethics, campaign finance law and lobbying regulation. The Legal Center represents the public interest in administrative, legislative and legal proceedings that enact, interpret and enforce these public integrity laws and regulations.

The Legal Center has reviewed the Public Corruption Prosecution Improvements Act (S. 49), which you introduced with John Cornyn (R-TX). S. 49 seeks to strengthen federal public corruption laws by closing loopholes in the federal bribery and illegal gratuities statute and by providing federal prosecutors with additional resources to combat official misconduct. We conclude that this legislation would be an important tool in holding public officials accountable for abuses of public office.

In particular, the legislation offers crucial amendments to the federal illegal gratuities statute, 18 U.S.C. § 201(c), to correct the overly narrow interpretation given this statute by two federal court decisions.

The illegal gratuities statute prohibits the gift or offer of "anything of value" to a public official "for or because of any official act performed or to be performed by such public official," or the acceptance or solicitation of such a gift by a public official. Id. § 201(c)(1) (emphasis added). It serves as an important complement to the federal bribery statute because it prevents officials from accepting gifts and favors even where the explicit quid pro quo required for a bribery conviction is not involved.

The Supreme Court's decision in United States v. Sun-Diamond Growers Ass'n, 526 U.S. 398 (1999), however, significantly weakened the efficacy of this statute. There, the Supreme Court considered whether the Sun-Diamond Growers Association - which had showered then-Secretary of Agriculture Mike Espy with approximately $6,000 in gifts - had violated the federal gratuities statute. The Supreme Court held that the federal gratuities statute requires that a "particular official act be identified and proved" in connection to a gift to a public official. 526U.S. at 406 (emphasis added). Although the government had argued that Secretary Espy had the authority to act on multiple pending matters to the benefit of the Association, the Court found that the government had failed to make its case because it had not linked the Association's gifts to any "particular" official acts by Espy.

The second decision to narrow the gratuities statute, Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007), reviewed the conviction of a police officer who was charged with pocketing $400 from an undercover FBI informant in exchange for acquiring information from a restricted police database. The D.C. Circuit overturned his conviction in a 7-5 en banc decision because the majority found that the government had failed to show that Valdes' actions were an "official act" within the meaning of the gratuities statute. According to the Court, an "official act" encompassed only those formal, official actions that are connected to a "class of questions or matters whose answer or disposition is determined by the government." 475 F.3d at 1324. Since acquiring information from the restricted database was not part of the police officer's "official" governmental duties, the en banc Court of Appeals overturned the conviction.

The effect of these two decisions is to render the federal gratuities statute toothless. Further, because an "official act" is also one type of predicate act under the federal bribery statute, 18 U.S.C. § 201(b), these decisions also hamstring the enforcement of this statute. Essentially, public officials can accept gifts and services in exchange for performing acts within the scope of their official authority, but escape prosecution if their actions do not meet the stringent standards for "official acts" established by Sun-Diamond and Valdes. Many instances of egregious public corruption simply do not meet these standards. For instance, paying officials to improperly disclose government information or to misuse government property and resources would probably not constitute "official acts" under this precedent.

S.49 seeks to correct this disabling construction of the illegal gratuities law by amending the statute to make clear that public officials may not accept anything of value given to them "for or because of the official's or person's official position," as well as "for or because of any official act." The legislation exempts from coverage, however, any gift to a public official that would be permitted by any other law or regulation. It thus permits those de minimis or otherwise unobjectionable gifts allowed by valid federal ethics or gift laws and regulations. The bill also expands the definition of the term "official act," see 18 U.S.C. § 201(a)(3), that appears in both the federal gratuities and bribery statutes, to include "any action within the range of official duty."

These amendments have been drafted to ensure that federal prosecutors have the necessary legal tools to combat public corruption. The gratuities statute will only deter influence peddling and prevent the abuse of office if it prohibits all gifts given to a public official for or because of the official's position - not only those gifts given to influence "particular" official actions of requisite "formality."

Further, in the Legal Center's opinion, the Sun-Diamond and Valdes decisions in no way preclude the amendments to the public corruption laws proposed in S. 49. Both cases construed the gratuities statute narrowly as a matter of statutory interpretation - i.e., based on the language of the statute and considerations of congressional intent - and did not reach constitutional issues. For instance, theSun-Diamond Court based its narrow interpretation of an "official act" on the "natural meaning" of the statute, finding it "implausible that Congress intended the language of the gratuity statute - 'for or because of any official act performed or to be performed' - to pertain to the office rather than (as the language more naturally suggests) to particular official acts." 526 U.S. at 406, 409. Neither the Sun-Diamond nor the Valdes decision limits Congress's authority to amend the public corruption statutes. In other words, the Supreme Court and the D.C. Circuit found that a narrow construction was required by the language of the statute, and amending the language of the statute is within Congress' authority.

Additional valuable proposals in the bill include significantly increasing the statutory penalties for committing certain public corruption offenses and extending the statute of limitations for serious public corruption crimes, such as bribery, deprivation of honest services, and extortion involving a public official. The legislation also increases the personnel and resources available to the Offices of Inspectors General and the Justice Department to investigate and prosecute these important public corruption cases.

The Public Corruption Prosecution Improvements Act seeks to provide federal prosecutors with the power and resources to hold public officials accountable for their abuse of office. Its proposed amendments to the bribery and illegal gratuities statute - a statute which has been greatly weakened by recent judicial interpretations - would greatly assist in achieving this legislative goal.

Respectfully,

J. Gerald Hebert

Campaign Legal Center

Executive Director and Director of Litigation

The Fairness Doctrine was never on the table except in the minds of talk radio hosts and those seeking their favor on Capitol Hill. Today's use of the Fairness Doctrine by Senator Jim DeMint (R-SC) in an offered amendment to the DC Voting Right Act bill was nothing more than a Trojan horse. The Fairness Doctrine title was only to offer cover from talk radio for those who would vote for the amendment.

Those of us who have long been proponents of robust public interest obligations for broadcasters who use for free the publicly owned airwaves to make millions and millions of dollars recognize that this recent effort to gin up concern about reimposition of the Fairness Doctrine is a straw man. What was put before the Senate today in the DeMint Amendment was a bald effort to strip the FCC of its powers to ensure the nation's airwaves serve the citizens and not simply enrich the broadcast industry.

No one should be fooled by this clear attempt to rile up the conservative grassroots by pretending that there is a threat where none exists. The threat is that posed by Sen. DeMint and his allies who would hamstring a federal agency which is by statute charged with ensuring the nation's airwaves serve the public interest. Senator Dick Durbin (D-IL) should be commended for his effort to narrow the DeMint amendment.