NACDL Urges Senators to Vote Against Overcriminalization

Legislative alert on S.AMDT. 1483 to the STOCK Act (S. 2038) - NACDL Letters to the Senate on January 30, 2012, and February 1, 2012.

Vote NO on S.AMDT 1483 to the STOCK Act (S. 2038)

NACDL Letter to U.S. Senate
February 1, 2012

S.AMDT. 1483, the Leahy-Cornyn Amendment to the STOCK Act, is a dangerous attempt to bypass the democratic process and enact into law a controversial proposal that will undoubtedly result in the arbitrary and potentially politically-motivated deprivation of freedom for innocent, law-abiding Americans.  This amendment is not germane to the STOCK Act and contains a major change to existing federal law that has never received Congressional, let alone public, scrutiny.  We urge you to block consideration of S.AMDT. 1483 and to vote against any attempt to attach it to the STOCK Act.
Contrary to the claims of its sponsors, not all of the provisions of S.AMDT. 1483 have been fully vetted by either the Senate or House Judiciary Committee.  While much of the text of S.AMDT. 1483 is similar to the so-called “Clean Up Government Act” (H.R. 2572), it fails to include some of the key changes made to H.R. 2572 during markup that would increase the mens rea (criminal intent) protections provided by the law, and, worse, it includes an entirely new change that dramatically expands an existing federal criminal offense—the removal of the word “personally” from 18 USC 201(c)(1)(B).  This change is unnecessary and eviscerates a sensible limitation contrary to Congressional intent.  Deleting “personally” from the existing law will subject all things of value given to anyone with a connection (either professional or personal) to a public official to prosecutorial scrutiny and will create uncertainty with regard to items such as campaign contributions. The change in the law is not necessary due to the operation of criminal conspiracy laws as well as case decisions that already allow DOJ to prosecute third parties. See United States v. McCarter, 219 Fed.Appx. 921 (11th Cir. 2007); United States v. Sun-Diamond Growers of California, 941 F.Supp. 1262 (D.D.C. 1996). And yet, the sponsors of S.AMDT. 1483 are attempting to make this significant change to existing federal criminal law in a way that will guarantee it receives zero scrutiny from their fellow Senators, let alone the Senate Judiciary Committee.
Supporters of the amendment, and the bill in general, characterize it as merely "closing loopholes."  Reversing two U.S. Supreme Court decisions is not closing loopholes; it is, however, irresponsible.  S.AMDT. 1483 seeks to re-write multiple criminal laws in precisely the way the Supreme Court has declared would be unconstitutionally vague and overbroad.  See Skilling v. United States, 130 S.Ct. 2896 (2010); United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999).  Requiring the criminal law to provide well-intentioned and law-abiding Americans with notice of what constitutes illegal activity is far from a loophole; it is a fundamental pillar of our Constitutional structure.
The decades of successful prosecutions of corrupt public officials with the over two dozen federal criminal statutes already in existence belies all assertions that the Department of Justice desperately needs more tools in order to prevent public corruption.  Supporters of S.AMDT. 1483 claim that DOJ cannot do its job without the changes therein, and yet, to support these claims, they point to multiple cases of successful federal criminal prosecutions of public officials.  In fact, they fail to cite a single case where DOJ was legitimately hampered in bringing criminal charges. 
S.AMDT. 1483 is not only the poster-child of the disturbing and costly overcriminalization trend, it is the epitome of all that is dysfunctional with the federal criminal law-making process.
  Groups across the right-left political spectrum agree:  Congress must end its addiction to criminalizing the everyday conduct of everyday people.  These same groups agree that hasty, uninformed and knee-jerk criminalization wreaks unsustainable havoc on our system of justice.
The provisions of S.AMDT. 1483 represent a number of dramatic changes to the law desired by the Department of Justice that Congress has declined to support on multiple occasions.  Now, its sponsors are trying to slip it into the STOCK Act unnoticed.  Don’t let the STOCK Act become a tool for special interests—Vote NO on S.AMDT. 1483. 

The "Clean Up Government Act": A Stain on Our Laws

NACDL Letter to U.S. Senate
January 30, 2012

The “Clean Up Government Act” is dangerously vague and puts innocent people at risk of criminal prosecution.   That was the nearly unanimous conclusion of several Members of the House Judiciary Committee after an extensive hearing on the bill (H.R. 2572) last summer. Despite attempts to revise its provisions, the bill remains a poster-child for the disturbing and costly overcriminalization trend. 

In its effort to overturn multiple, unanimous U.S. Supreme Court decisions, this bill tramples on states’ rights and opens the door to politically-motivated prosecutions.  Although the Senate Judiciary Committee has never engaged in public debate on this version of the bill, there are plans to offer it on the floor of the Senate as an amendment to another bill as early as tomorrow.  Passing laws that could deprive law-abiding citizens of their freedom are troubling enough, but doing so without sufficient debate is simply unacceptable. 

  • This proposal would create a new federal criminal offense, which would criminalize something called “undisclosed self-dealing” on the part of lawmakers.  Despite that fact that there are already over two dozen existing federal laws that criminalize public corruption, supporters say they “need” this law to prosecute state and local public corruption.  Apparently, supporters of the bill are not concerned about the federal government’s admitted intrusion into purely state and local governance issues.  They would rather criminalize behavior that state and local jurisdictions, who know the needs of their community best, might have decided should not be criminalized.  What currently may be a transgression or mistake subject to state administrative law, will now be subject to a twenty year federal prison sentence.
  • This is particularly troubling with language which, if passed, would be unconstitutionally overbroad and vague.  In general, this “undisclosed self-dealing” offense would consist of any public official failing to properly disclose a completely undefined “financial interest” that was required to be disclosed by any law.  This kind of broad application is especially concerning in light of the numerous part-time state and local legislators who own businesses in their home states.  The proposal ignores the serious concerns raised in the recent Supreme Court case, United States v. Skilling, which ruled that any new “honest services” type statute would need to clearly define: (a) the “significance” of the conflicting financial interest; (b) the extent to which the official action has to further that interest to rise to the level of fraud; and (c) the scope of the disclosure duty (to whom should the disclosure be made and what exactly should it convey).  In addition, the claim that federal prosecutors “need” this change in the law in order to prosecute unpunished state and local corruption is erroneous.  The recent prosecutions under the Travel Act and the Hobbs Act belie any assertion that federal prosecutors need more tools.
  • This proposal would also overturn United States v. Sun-Diamond Growers of California, thus expanding the federal criminal gratuities statute to cover any thing of value (over $1,000) that is given to a public official simply because of their status as a public official.  The Sun-Diamond decision requires the government to actually prove a link between the thing of value given and a specific act “for or because of” which it was given in order to prove a federal crime.  The Supreme Court was concerned that the expansion of the law to things of value given merely on the basis of the public official’s status would go too far and criminalize all sorts of legitimate conduct.  That should be your fear as well. 
  • The proposal also seeks to expand the already broadly defined phrase “official act” to include “any act within the range of official duty.”  In Valdes v. Unites States (2007), the D.C. Circuit rejected the same definition of “official act” as the one proposed here because they feared its broad reach could even include applying the bribery and gratuity statutes to a situation in which a DOJ lawyer used a government Westlaw account to look up a legal question for a friend.
  • The proposal would dramatically increase (in some cases, even doubling) various maximum imprisonment terms for multiple offenses.  These increases are unjustified, as neither the proposed bill nor the Justice Department has provided any evidence that any increases are necessary, let alone appropriate.

Groups across the right-left political spectrum agree: Congress must end its addiction to criminalizing the everyday conduct of everyday people.  Rather than clean up government, this law will only muddy the waters and it will do so at the taxpayers’ expense.  Vote against overcriminalization by voting no on any attempt to amend the so-called “Clean Up Government Act” to a bill on the Senate floor.  

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