The art of the deal, Capitol style — Part II

Ed’s Note: This is the second installment in a two-part series examining legal issues related to Capitol deal-making.)

Cutting deals is part of the Capitol culture — it’s how laws are made.

But does this deal-making come close to the legal line, or even cross it?

Do legislative leaders or the governor act with a “corrupt intent” when negotiating with legislators over public policy issues?

Let’s continue our review of California criminal statutes that might apply to the wheeling and dealing of the Legislature.

To do that, we need to dive — again — back into the weeds.

Penal Code Sections 85 and 86 deal specifically with bribery by or of legislators and other elected officials. Penal Code Section 85 makes it a felony for any person to give or offer to give a legislator a bribe with a corrupt intent to influence the legislator’s vote in an official matter.

Section 85 also prohibits someone from using corrupt means like menace and deceit to coerce a legislator to give or withhold his vote on an issue. Section 85 has been interpreted to include a prohibition against vote trading.

However, this section is premised upon giving a bribe to a legislator. It seems highly unlikely that providing funding for a specific legislative district project, for example, would constitute a bribe.

Do legislative leaders or the governor act with a “corrupt intent” when negotiating with legislators over public policy issues? Bribery is premised upon the elected official receiving a personal financial benefit. No one has argued that occurring here.

Are legislative  negotiations that induce a vote by wrongful use of fear, or under color of an official right, permissible?

Nonetheless, this section has been interpreted to prohibit vote-trading.

That’s because the state’s criminal laws not only outlaw bribery and vote-trading, but also “any attempt by menace, deceit, suppression of truth, or any corrupt means, to influence a member in giving or withholding his or her vote.” This language appears to be a broad prohibition and could be applicable in these instances.

In addition, using threats or force to compel a public officer to perform an official act could also be prosecuted under Penal Code Section 518, which is California’s extortion law.

This section says, “Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” Voting is an official act by a legislator.

But are legislative  negotiations that induce a vote by wrongful use of fear, or under color of an official right, permissible?

Similarly, Penal Code Section 86 deals with bribes by legislators and makes it a felony for a legislator to ask, receive or agree to receive something of value with a corrupt intent to influence the legislator’s vote in an official matter. Section 86 also prohibits a legislator from conditioning his or her vote on that of another legislator.

Here again, it appears this section deals with bribes and the receipt of personal financial benefit by a legislator. Would the result of these legislative negotiations amount to “bribery”?

In Porter v. Bowen, the court said that the exchange of political rather than personal benefits was activity protected by the First Amendment.

The interesting provision is the clause in Section  86 that “prohibits a legislator from conditioning his or her vote on that of another legislator.”

This implies vote-trading with another legislator. In other words, “if you vote for my bill, then I will vote for your bill.” But is this what occurs in these legislative negotiations? Is there such an explicit quid pro quo involved?

This question leads to an interesting decision by the U.S. Court of Appeals for the Ninth Circuit, which may shed some insight.

The case was Porter v. Bowen and the federal appellate court determined that the First Amendment barred the state of California from closing the 2,000 Nader-Gore vote-trading websites. (Click here for a Slate report on the issue.)

The court said that the exchange of political rather than personal benefits was activity protected by the First Amendment, even if the vote exchanges were somehow enforceable. Part of the court’s opinion follows:

“Whatever the wisdom of using vote-swapping agreements to communicate these positions, such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties’ willingness to exchange votes for money (or some other form of private profit). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned “without trenching on any right of association protected by the First Amendment.”

Without money changing hands (the traditional definition of bribery), it appears the First Amendment protects legislative negotiations.

Vote-swapping, however, is more akin to the candidate’s pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote-buying.

Like the candidate’s pledge, vote-swapping involves a “promise to confer some ultimate benefit on the voter, qua…citizen[ ] or member of the general public”–i.e., another person’s agreement to vote for a particular candidate. Id. at 58-59.

And unlike vote-buying, vote-swapping is not an “illegal exchange for private profit” since the only benefit a vote-swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass, the court noted.

Without money changing hands (the traditional definition of bribery), it appears the First Amendment protects legislative negotiations. Don’t these legislative “deals” amount to “political benefits,” which are protected by the First Amendment, rather than “personal benefits” because they do not accrue to the legislator?

In the end, these legislators are looking out for what is best for their districts and constituents and do not receive any personal financial benefit.
—
Ed’s Note: Chris Micheli is a principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He is an adjunct professor at McGeorge School of Law.