Honest Services & Public Corruption Legislation

News:  "STOCK Act's expansive jurisdiction could lead to abuse of power," NACDL's Shana-Tara Regon, The Hill, February 10, 2012. 

News:  "House of Representatives Correct to Reject Flawed 'Public Corruption' Amendment to STOCK Act," NACDL Press Release, February 9, 2012.

The Supreme Court’s decision in Skilling v. United States fundamentally altered the landscape of 18 U.S.C. § 1346 honest services fraud prosecutions. Cases and clients at every stage of the criminal adjudication process are affected by the Skilling decision and the uncertain state of law. Meanwhile, the Department of Justice and other organizations are lobbying for a Skilling-fix. NACDL opposes such a fix and any attempts to restore a limitless honest service fraud statute. This page recounts the legislative response to the Skilling decision.

112th Congress Re-introduces Honest Services & Corruption Legislation

On April 8, 2011, Rep. Anthony D. Weiner (D-NY), re-introduced the Honest Services Restoration Act. This bill, H.R. 1468, which is identical to H.R. 6391 introduced during the 111th Congress, expands the prohibitions of the honest services fraud statute, 18 U.S.C. 1346, to include undisclosed self-dealing by any public official or any officer or director of any publicly-traded corporation of private charity. The phrase "undisclosed self-dealing" is broadly defined.  Although H.R. 1468 is still pending before the House Judiciary Committee, its text has been incorporated into another public corruption bill entitled the Clean Up Government Act of 2011, H.R. 2572.  More detailed analysis on H.R. 2572, as well as NACDL's advocacy against it, is available here.  The House Judiciary Committee reported H.R. 2572 to the full house in September 2012, but no further action has been taken on it.

On May 12, 2011, Senator Kirk introduced a Senate honest services bill, the Public Officials Accountability Act, S. 995, which is very similar to Senator Leahy's S. 3854 from the 111th Congress.  The Senate Judiciary Committee added the text of S. 995 to another bill, S. 401, the Public Corruption Prosecution Improvements Act, which was voted out of committee on July 28, 2011.  More detailed analysis of this amended version of S. 401, as well as NACDL's advocacy against it, is available here.  No further action has been taken on either bill.

On January 31, 2012, Senators Leahy and Cornyn introduced S.AMDT. 1483 to the STOCK Act (S. 2038) in an effort to enact their stalled public corruption legislation into law.  The amendment is substantially similar to the various public corruption proposals described above and includes an alleged Skilling-fix.  NACDL warned Senators of the dangerous nature of this amendment prior to its introduction and again on February 1, 2012, prior to a vote on the measure.  Read those letters here.  S.AMDT. 1483 was ultimately added to the Senate version of the STOCK Act but House leadership removed it from the version of the STOCK Act the House passed on February 9, 2012.  Read NACDL's Press Release on that vote here. 

111th Congress Introduces New Honest Services Fraud Legislation

On September 28, 2010, the Senate Judiciary Committee held a hearing entitled "Restoring Key Tools To Combat Fraud and Corruption After the Supreme Court's Skilling Decision," during which Department of Justice officials claimed that the Supreme Court's Skilling decision took away much needed prosecutorial tools. Despite this call for a legislative "fix," no legislation had been introduced prior to the hearing and no specific proposals were discussed.

NACDL's written statement, authored by NACDL member Timothy P. O'Toole and submitted into the hearing record, cautioned against any legislative "fix," particularly any quick "fix" that attempts to retain the "flexibility" that prosecutors enjoyed when they had an unlimited honest services statute in their toolbox. NACDL also countered the Department's claim of insufficient tools with a lengthy list of criminal statutes, available to prosecutors, which already address the conduct the honest services law attempted to prohibit.

Just hours after the hearing concluded, Senator Pat Leahy (D-VT) introduced S. 3854, the Honest Services Restoration Act, which attempts to "plug" the alleged "gap" created by the Skilling decision. The bill is available here and a Wall Street Journal article on the hearing and subsequent legislation can be viewed online here. The corresponding House legislation, H.R. 6391, is available here.

On November 9, 2010, Assistant Attorney General Lanny Breuer responded to written questions from Senator Leahy submitted following the hearing. AAG Breuer's answers can be viewed online here.

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