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Distinguishing between the "public corruption amendment" and fighting public corruption

Given the tenor of the debate surrounding the recently introduced Stop Trading on Congressional Knowledge ("STOCK") Act of 2012, it seems to be logical to assume that opponents of the "public corruption amendment" to the STOCK Act either support public corruption or do not view it as an insidious crime that warrants vigorous enforcement. It is perhaps the contemplation of that intuitively erroneous assumption that triggers the recognition of a noticeable pattern with regard to the manner in which House Majority Leader Eric Cantor's recent attempt to remedy the STOCK Act, by removing S.AMDT. 1483, the Leahy-Cornyn Amendment (also known as the "public corruption amendment") has been portrayed by proponents of that amendment and in the media. The reasoning for the resistance against the inclusion of the "public corruption amendment" as expressed by Rep. Cantor and others in opposition has been given short shrift if addressed at all.

There has been no mention of the troubling phenomenon collectively dubbed by many public officials and policy organizations on both sides of the aisle as overcriminalization, in which "regulatory transgressions and other conduct is transformed into criminal offenses by legislators eager to prove they are 'tough on crime,' abetted by courts that fail to enforce necessary limits on prosecutors' efforts to expand the scope of 'criminal' conduct. It is in fact the concern for this alarming trend, in light of the 4,450 federal crimes enumerated across 50 titles of the U.S. Code and estimated 10,000-300,000 regulations that authorize criminal enforcement, that has driven staunch opposition against the inclusion of the "public corruption amendment" to the STOCK Act.

The National Association of Criminal Defense Lawyers have articulated this concern in their numerous letters to the Senate. In a recent article, Shana Regon, director of white collar crime policy at NACDL, summarized substantive legal and constitutional issues in defense of Congressman Cantor's exclusion of the Leahy-Cornyn amendment.

Supporters of the amendment characterize it as merely "closing loopholes." Reversing two U.S. Supreme Court decisions, however, is not closing loopholes, it is irresponsible. The Senate version of the STOCK ACT seeks to re-write multiple criminal laws in precisely the way the Supreme Court has declared would be unconstitutionally vague and overbroad. See Skilling v. United States, 130 S.Ct. 2896 (2010); United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). Requiring the criminal law to provide well-intentioned and law-abiding Americans with notice of what actually constitutes illegal activity is far from a loophole; it is a fundamental pillar of due process.

Specifically, the proposal would create a new federal criminal offense, which would criminalize something called "undisclosed self-dealing" on the part of lawmakers. In general, this "undisclosed self-dealing" offense would consist of any public official failing to properly disclose a completely undefined "financial interest" that was required to be disclosed by any law. This broad application is especially troubling in light of the numerous part-time state and local legislators who own businesses in their home states and who therefore have financial interests. For example, does a local legislator who owns a gas station have a financial conflict when he votes on a transportation bill that would repair a highway or a bridge in his home state?

Even without analyzing whether these arguments are conclusive or even persuasive, they certainly don't in any way explicitly or implicitly defend public corruption. Nor does the concern for overcriminalization seek to in any way protect a public official committing a criminal act. The opposition is focused on overly broad and vague criminal provisions allowing federal prosecutors the discretion to the enforce those laws disproportionately without providing adequate notice to those subject to such enforcement. The distinction between opposing the "public corruption amendment" and unwillingness to fight against public corruption is an important one to recognize, especially if proponents of the amendment and media outlets continue to employ populist talking points rather than substantively responding to valid bi-partisan concern.

Timothy O'Toole and Andrew Wise, attorneys at the Miller Chevalier law firm, discuss these issues at length in recently recorded podcasts featured on PoL.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.