Legal Commentary

The U.S. Department of Justice is engaging in a nation-wide attack on "pay-to-play" contracting practices under which businesses win government contracts in part because they make donations to politicians' campaign funds. Governor Richardson is the latest victim of this play-for-power from DOJ: He has withdrawn from consideration as Secretary of Treasury because of allegations that CDR Financial won contracts with the State of New Mexico in return for donations to Richardson's PACs.

I have posted on this topic before, and I have argued against such DOJ power grabs in print (in Federalism and Corruption: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?,6 Theoretical Inquiries in Law 113 (January 2005).

But the point is worth repeating: These federal efforts to attack politicians' favoring campaign contributors when the favoritism does not violate state law are outrageous power grabs by the DOJ. Yes, the Congress has permitted prosecutions of politicians who use the mails to defraud citizens of their right to honest services. But the statute nowhere defines what it means to be "dishonest." As I'll suggest after the jump, the DOJ's prosecution of ordinary patronage politics without any clear statutory warrant in either state or federal law is much more threatening to democracy than any petty "pay-to-pay" scheme that state and local politicians have ever concocted.

Consider two reasons for why DOJ's attacks on "pay-to-play" politics undermine democracy.

(1) Campaign finance and disclosure rules are obviously constitutionally sensitive matters: Limiting campaign contributions implicates First Amendment concerns, and requiring contributors to disclose the recipients of their support implicates privacy concerns as well. These concerns can be managed by intelligent legislation. Can the blunderbuss of criminal indictment manage them with the requisite subtlety? I doubt it.

(2) As a matter of policy, it is not obvious that "play-to-pay" is always undesirable. Political parties often operate on the principle that those who contribute time, money, and fund-raising efforts to campaigns should get first dibs at political jobs. (Nancy Pelosi's elevation to the Speakership surely owes as much to her fund-raising prowess as to her oratory or policy acumen). There is a longstanding theory that strong political parties are useful in a democracy. Quite apart from the needs of political parties, there is the larger question of whether ordinary preferences for one's longtime supporters constitutes illegal pay-to-play. Suppose that I tirelessly campaign for Candidate X, giving him time and money. Can X take these contributions into account when assessing whether to appoint me to a policy-making post? X needs assurance that I support X's agenda: If the law says that X cannot use contributions as evidence of my loyalty, then the law risks looking asinine. But do we expect U.S. Attorneys to appreciate these finer points of political science when nailing a politician's hide to their trophy wall? Given that such prosecutions will help fuel those prosecutors' own political campaigns, I doubt it.

There are lots of state laws forbidding bribery, gratuities, undisclosed contributions, etc. U.S. Attorneys who devoted their efforts to enforcing these state laws through the federal mail fraud act would have their hands full. Such a role might be useful in bringing to light behavior illegal under state law that state officials might be timid about attacking because of their political loyalties. Why not require federal prosecutors to stick to enforcing existing state and federal statutes rather than making up a federal "common law" of crimes under the guise of enforcing the mail fraud statute's prohibition of "dishonesty"? By using state law to define what it means for state and local politicians to deprive constituents of "honest services," courts would place a curb on federal prosecutors' powers that is well-adapted to protect federalism and separation of powers simultaneously.