U.S. Senate: Anti-Corruption Provisions Should be Restored to STOCK Act in Conference, Legal Center, Reformers Tell Majority Leader Reid

Today, the Campaign Legal Center and other reform groups urged Senate Majority Leader Harry Reid (D-NV) to insist on a STOCK Act conference to restore key anti-corruption provisions to the legislation that were stripped out of the House version.

“Claims by House Leaders that they had passed a stronger bill than the Senate fly in the face of reality,” said Meredith McGehee, Campaign Legal Center Policy Director.  “There are no two ways around the fact that they gutted the bill of multiple provisions that would have held Congress and other government officials accountable by restoring vital anti-corruption statutes.  A failure to include the anti-corruption provisions will only hammer home the public perception that Congress believes itself above the law and drive public approval ratings still lower.”

The anti-corruption provisions are the result of longstanding efforts in both houses of Congress to restore the ability of prosecutors to hold government officials accountable after a series of controversial court rulings have defanged anti-corruption statutes.  Both the House and the Senate Judiciary Committees have passed freestanding versions of this legislation during this Congress.  The anti-corruption provisions focus on honest services and illegal gratuities statutes and are the result of the partnership of Senators Leahy (D-VT) and Cornyn (R-TX) and Representatives Sensenbrenner (R-WI) and Quigley (D-IL) who have sponsored the legislation.

The organizations signing the letter with the Legal Center include, Citizens for Responsibility and Ethics in Washington, Common Cause, Democracy 21, Public Citizen and U.S. PIRG.

The full text of the letter follows below.

March 6, 2012
 
The Honorable Harry Reid
U.S. Senate
Washington, D.C. 20510
 
Dear Majority Leader Reid:

We strongly urge the Senate to restore critical anti-corruption provisions to the STOCK Act that  were stripped from the legislation before passed by the House of Representatives. While the bill as whole contains many laudable provisions, among the most significant was the Leahy-Cornyn amendment, which strengthened prosecutors’ ability to target public corruption.  These provisions, which also were approved by a unanimous House Judiciary Committee, amended the honest services fraud, illegal gratuities and bribery statutes.

The Supreme Court decision in Skilling v. United States, 130 S. Ct. 2896 (2010), eliminated an entire category of deceptive, fraudulent and corrupt conduct from the scope of what was known as the honest services fraud statute (18 U.S.C. § 1346).  For decades, §1346 was available to prosecute public officials who engage in malfeasance, such as undisclosed self-dealing.  Unfortunately, theSkilling decision effectively struck down as unconstitutionally vague the honest services language.  Consequently, there remains a gaping hole in the ability of federal prosecutors to address a vast swath of public corruption.

The language in the Senate-passed STOCK Act repairs the problem, It also heeds the Supreme Court’s directive for more clarity and specificity by borrowing existing language from 18 U.S.C. § 208, a well-established federal conflict-of-interest statute that already applies to the executive branch and has been upheld as constitutionally sound.[1] Notably, under the proposed statute, no public official could be prosecuted unless he or she knowingly conceals, covers up, or fails to disclose material information – which the official already is already required by law or regulation to disclose – with the specific intent to defraud.  Thus as crafted, it removes the risk that a public official can be convicted for unwitting conflicts of interest or mistakes.

The Leahy-Cornyn amendment also revises the illegal gratuities statute -- eviscerated by the Supreme Court in United States v. Sun-Diamond Growers, 526 U.S. 398 (1999) -- to make clear public officials may not accept gifts given because of their governmental positions.  In addition, responding to United States v. Valdes, 475 F.3d 1319 (D.C. Cir. 2007), the provision makes clear government officials who accept private compensation for using the powers their jobs afford them may be subject to criminal prosecution.

Given the wide bipartisan support of these measures in both the House and Senate, it is difficult to understand why House Majority Leader Eric Cantor chose to delete them before bringing them before bringing the STOCK Act to the floor.

In light of the recent congressional scandals, it is no wonder Americans have lost faith in their elected leaders. While the STOCK Act is not a panacea, enacting the strong anti-corruption sections included in the Senate bill would be a step in the right direction.  We strongly urge you to use your leadership to restore these provisions before final passage.

Sincerely,

Campaign Legal Center
Citizens for Responsibility and Ethics in Washington
Common Cause
Democracy 21
Public Citizen
U.S. PIRG

[1] United States v. Richard J. Nevers, 7 F.3d 59 (5th Cir. 1993).