Legal Analysis Of The Public Corruption Prosecution Improvements Act
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.
J. Gerald Hebert
Campaign Legal Center
Executive Director and Director of Litigation