Analysis

The art of the deal — Capitol style

The Assembly chamber in the state Capitol, Sacramento. (Photo: Felix Lipov, Shutterstock)

We often read about the “wheeling and dealing” among elected officials that occurs in state capitols across this country, including Sacramento. While some Capitol observers refer to it as lawful deal-making, others characterize it as improper, or even unlawful, vote trading.

So which is it?

The key question is whether there is anything improper about a legislator agreeing to vote for one bill because of promises that are made to that legislator, to another lawmaker, or even to the governor.

In other words, is the push-and-pull of lawmaking – along with the inevitable compromises that elected officials reach during negotiations — improper or illegal? Is there a quid-pro-quo here?

Historically, the courts have been reluctant to examine the internal debates and activities of the legislative branch of government.

While so-called “pork barrel politics” may appear unseemly to some people, does that make them illegal?

But with a claim of impropriety or illegality, should the courts examine these allegations of misconduct?

Most Capitol observers pose a simple question: If elected officials are precluded from negotiating over provisions of bills, what will happen in the legislative process? Will it get bogged down?

Others wonder whether it is impermissible for legislators to secure tangible benefits for their districts and constituents. While so-called “pork barrel politics” may appear unseemly to some people, does that make them illegal?

Every year in the California State Capitol, there are legislative deals between lawmakers, or lawmakers and the governor. With the passage of these deals, there has been private and public debate in and around the Capitol over whether such deals violate any federal or state laws.

Let’s begin by looking at federal and state laws that may be applicable in determining an answer to these concerns.

There do not appear to be any allegations that there is actual or attempted robbery or extortion in these legislative negotiations. The Hobbs Act would not apply

First, it does not appear that either of the major federal criminal statutes apply in this case:

The Hobbs Act is found at 18 U.S.C. Section 1951. According to the U.S. Attorney’s Office, “The Hobbs Act prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce. Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy statute at 18 U.S.C. § 371. Although the Hobbs Act was enacted as a statute to combat racketeering in labor-management disputes, the statute is frequently used in connection with cases involving public corruption, commercial disputes, violent criminals and street gangs, and corruption directed at members of labor unions.”

There do not appear to be any allegations that there is actual or attempted robbery or extortion in these legislative negotiations. The Hobbs Act would not apply.

The Honest Services Fraud Act is found at 18 U.S.C. Section 1346. The honest services fraud is a crime defined in the federal mail and wire fraud statute which states: “For the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.”

There do not appear to be any allegations of bribes or kickbacks from a third party occurring in these legislative negotiations. Therefore, the Honest Services Fraud Act would not apply.

According to Wikipedia, “the statute has been applied by federal prosecutors in cases of public corruption, as well as in cases in which private individuals breached a fiduciary duty to another. In the former, the courts have been divided on the question of whether a state law violation is necessary for honest services fraud to have occurred.”

The U.S. Supreme Court has interpreted this statute to only cover “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who ha[s] not been deceived.”

There do not appear to be any allegations of bribes or kickbacks from a third party occurring in these legislative negotiations. Therefore, the Honest Services Fraud Act would not apply.

The state constitution specifies “a person” who seeks to influence the vote or action of a legislator. This constitutional provision uses member of the Legislature in three places.

In turning to California law, the state Constitution in Article IV, Section 15 provides: “A person who seeks to influence the vote or action of a member of the Legislature in the member’s legislative capacity by bribery, promise of reward, intimidation, or other dishonest means, or a member of the Legislature so influenced, is guilty of a felony.

Note the language of the state constitution: It specifies “a person” who seeks to influence the vote or action of a legislator. This constitutional provision uses member of the Legislature in three places.

But because this section uses the words “person” and “member of the Legislature,” it appears to be directed at those who are not members of the Legislature and who try to influence a legislator to act in his or her official capacity.

So, if only non-legislators are affected by this provision, then neither the governor’s nor other legislators’ efforts to “influence” another legislator’s vote is covered.

California Constitution Article VII, Section 8(b) contains the following provision: “The privilege of free suffrage shall be supported by laws regulating elections and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice.” This provision raises questions of what constitutes “undue influence” and whether legislative negotiations amount to “power, bribery, or other improper practice”.

Perhaps one could argue that the chief executive or legislative leaders could impose “undue influence” or “other improper practice” on members of the Legislature, but that appears to be a stretch.

In turning to California statutes, bribery may be a logical place to start. Bribery is generally defined as an effort to influence a public official in conducting their official work using money or gifts. In legislative negotiations, neither money nor gifts change hands. But let’s look at the specific California Penal Code sections that deal with public officers, employees, and legislative officers.

Penal Code Section 7 provides the following definition of bribery: “The word ‘bribe’ signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity.”

The law does not require that the bribe is made or received to constitute a crime. However, do legislative negotiations amount to “bribery”? Have the legislators been given something of value? Did the governor or legislative leaders promise something with a “corrupt intent to influence” other legislators? These are high thresholds to meet and do not appear to be in play with legislative negotiations.

Ed’s Note: This is Part I of a two-part series. Part II will appear Wednesday. Chris Micheli, a regular contributor to Capitol Weekly, is a principal with the Sacramento governmental relations firm of Aprea & Micheli. He is an adjunct professor at McGeorge School of Law.


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