With their institution at all-time lows in public popularity and trust, it is no wonder that members of Congress are looking to improve the body’s image. The “Clean Up Government Act,” which is coming before the House Judiciary Committee this week, is one of the most prominent attempts to do so.
But a closer look shows that Congress is merely extending its streak of overcriminalization and overfederalization in the name of “good governance.”
In July, a hearing on the bill showed that there were clear problems with the legislation. Rep. James Sensenbrenner (R-WI), the bill’s sponsor and the chairman of the House subcommittee handling the bill, concluded at the July hearing that “The whole purpose of this bill is to try to have very clear definitions so that public officials know what is a violation and what isn’t. And I’m afraid that the testimony on the part of all three of our witnesses today indicates that there isn’t any agreement on what is a violation and what isn’t . . . . This bill needs quite a bit of work . . . .”
It is clear that, with his words of caution, Sensenbrenner and others have made changes to the bill that may fix some of those problems. The edited version, however, contains several overcriminalization concerns that still need to be addressed.
At its core, H.R. 2572 was an attempt to overturn three unanimous Supreme Court decisions. One section, which would have expanded the mail and wire fraud statutes to include “any other thing of value,” has been eliminated from the latest draft of the bill. This provision, which would have overturned Cleveland v. United States, would have extended federal jurisdiction to misrepresentations on applications for state and local licenses.
In addition to now trying to overturn only two Supreme Court decisions, there have been some minimal improvements to the bill. The proposed increases in minimum and maximum prison sentences have been reduced in some instances, although they are still higher than what is currently on the books. Additionally, an attempt to expand the definition of “official act” has been scaled back. .
The bill still falls short of resolving two key overcriminalization problems. First, under this proposed legislation, a public official, a term that is broadly defined, can be found in violation just by merely accepting a gift, without clear evidence of quid-pro-quo. In United States v. Sun-Diamond Growers of California the Supreme Court rejected such a broad interpretation of the gratuities law, on the ground that the interpretation would make a crime out of a large amount of blameless conduct. This bill, however, would do precisely that. Maybe there is a good explanation why the Congress should reject a unanimous, reasonable, and commonsensical Supreme Court decision. Maybe there is a good explanation why the Congress should abandon the quid-pro-quo requirement that long has been a part of bribery law. Maybe there is a good explanation why the Congress should enact a law with a sweep as broad as this one. But we don’t know what it is, and unless it is a good reason, the criminal law and the public will be worse off with than without this new criminal provision.
Second, the vagueness and overbreadth problems arising from the poorly-defined crime of “honest services fraud”—problems that the Supreme Court discussed in Skilling v. United States—still remains. This renewed attempt to criminalize “undisclosed self-dealing” is a prime example of overcriminalization, for several reasons.
Timothy O’Toole, a leading criminal defense attorney, provided a useful hypothetical in this regard. Suppose that a part-time Texas legislator owns a car dealership, votes in favor of a transportation bill that authorizes or funds highway construction projects, and fails properly to disclose his business. He would violate the proposed bill because, as a car dealer, he benefits from the construction of more and better roadways. This hypothetical would be deemed “undisclosed self-dealing” under the proposed legislation. The problem, according to O’Toole, is that there is no clear way to determine how far the term “any thing or things of value” would extend.
Furthermore, there are a number of existing state and local statutes and regulations that address self-dealing problems. A federal criminal law would have the effect of preempting those provisions because the new federal statute would outlaw conduct permitted by state or local law. That result raises significant federalism concerns. Rep. Sandy Adams (R-FL) and Rep. Louie Gohmert (R-TX) raised those concerns at the July hearing, and they have yet to be addressed.
Rather than “cleaning up” government, vague, overbroad, and overcriminalizing provisions cited above would only further clutter up the federal criminal code.
Source material can be found at this site.