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Date: Tuesday, 02 Sep 2014 15:01
-- Posted by Neil H. Buchanan

In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in United States v. Miller, a hate crimes case, and Bond v. United States, a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases.

The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron-style approach essentially says that apparent statutory purpose is always trumped by clear statutory language, no matter how clearly the two might diverge.  Professor Dorf's suggestion, with which I agree, is that knowing the purposes of a statute "can create ambiguity where the words alone do not appear to contain any."  That is, there is nothing wrong with the two-step approach, but we need to be more complete about our inquiry into what even apparently clear words of a statute could mean.

The two examples in Professor Dorf's post are, by design, rather clear-cut cases supporting the argument that he makes.  In both, the ambiguity arises from simply comparing the statutory language to the titles of the statutes in question.  That is, in Miller, the relevant language of the statute does not mention "hate crimes," but the statute itself is called the "Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act."  Similarly, in Bond, the statute in question is called the "Chemical Weapons Convention Implementation Act."  This means that, for those who might be concerned about opening up a limitless inquiry in search of ambiguity, Professor Dorf's examples are about as minimalist as one can imagine.  All one need be willing to do is to look at the bold-print, larger-font words sitting atop the act that one is parsing, and in these two cases, you might reach very different conclusions about what the statutory language means.

Moreover, Professor Dorf points out that an inquiry into possible ambiguity is not, as one might characterize it, fatal in fact.  That is, he argues that "the clarity of the statutory definition of [the relevant statutory term] may persist, even after one takes account of effects and purposes."  In other words, simply because the first prong becomes a richer and more complete exercise does not guarantee that we would always reach a different outcome (or even that we would reach the second prong).

The larger point is that the anti-textualist argument that Professor Dorf is making can still be limited, and it can avoid the well-known pitfalls of inquiring into the "mind of Congress" (insert sarcastic joke here), an inquiry that textualists mock in support of their more crabbed view of statutory interpretation.  Here, I want to offer another example that can be interpreted by the pro-Dorf side (which includes me) to demonstrate the richness of the appropriate inquiry, even as I acknowledge that textualists might at least try to use this example to prove that this is an inquiry that quickly expands beyond all reason.

As the title of this post indicates, my example comes from a federal tax case.  In Klaassen v. Comm'r, 182 F.3d 982 (1999), a unanimous panel of the Tenth Circuit interpreted relevant provisions of the Alternative Minimum Tax (AMT) in a way that forced a middle class family to pay "the millionaires' tax."  The case was prominently featured in David Cay Johnston's prize-winning book, Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich—and Cheat Everybody Else.  I was thus tempted to call Klaassen a "famous" tax case, but other than U.S. v. Windsor, the anti-Defense of Marriage Act case from last year that happened to arise in a tax context, I must be honest and say that there are no famous tax cases.  (The successful prosecution of Al Capone sort of counts, I suppose.)

The Klaassen family belonged to a fundamentalist offshoot of the Presbyterian Church.  Their religious beliefs prevented them from using birth control, and they soon found themselves with ten children.  With a family income (adjusted for inflation to 2014 dollars) in excess of $130,000, the family was hardly poor, but hardly rich -- especially considering how many mouths were being fed from that income.  As it happens, however, the AMT ignores how many mouths are to be fed.  Unlike the regular income tax, which provides a personal exemption for every member of the household, the AMT provides a large, lump-sum exemption regardless of family size, so long as the taxpayers' situation otherwise falls under the relevant criteria.

The IRS pointed out that the Klaassens did, in fact, otherwise fall under the sweep of the AMT, which increased the family's tax bill by about 20%.  The Tenth Circuit confronted the question of whether the "purpose" of the AMT could be used to trump the crystal clear language of the statue.  What is that purpose?  As I suggested above, the AMT is the law that was passed in response to press reports (in 1969) of millionaires who were not paying any federal income tax.  The idea was that the various provisions of the tax code were subject to the law of unintended consequences, such that tax breaks with defensible purposes when viewed separately were being combined to reduce taxes inappropriately for a handful of wealthy taxpayers.  The AMT was supposed to provide a minimum below which taxes on wealthier people could not fall.

That is not the way the provisions of the law were written, however.  The family's argument was simply that the law was clearly never intended to apply to them, whereas the Tenth Circuit said that it had no power to rule contrary to a "clear and unambiguous" Congressional enactment.  Although there is some hint that the case was not well argued, the court's decision made it clear that the judges felt that they had no power whatsoever to rule in favor of the Klaassens.  If one follows the instructions in the AMT, one ineluctably reaches the answer that the government favored; so the taxpayers lost the case.  Even the concurring judge (a very conservative Reagan appointee) wrote only to say that he wished Congress would fix this glitch in the law.

When I teach this case at the end of the Federal Income Taxation course each semester, I treat it as a rather simple and obviously correct decision.  The case is educational mostly because it walks readers through Congress's step-by-step instructions in how to apply key provisions of the AMT.  To drum up interest, I will usually ask whether there could be a "rational basis" for the seemingly odd outcome in the case, answering that one could view it as an "enough is enough" provision of the tax code.  That is, the Klaassens showed that, taking account of other relevant aspects of their situation, the AMT effectively eliminated the personal exemption's tax subsidy for their 9th and 10th children.  I point out in class that a rational Congress could have meant to say, "You know, the American people are happy to help you with the first 8 kids, but after that, you have to pay full price."  Obviously, no actual Congress would say such a thing, but that is not what rational basis inquiry requires.

In light of Professor Dorf's post yesterday, however, I now think that Klaassen is a much more interesting case.  It is true that the relevant statutory language is "clear and unambiguous," in the sense that one could follow its dictates without fear of committing an error of interpretation.  (That does not make it simple, of course.  But it is, however complicated it might be, clear and unambiguous.)  Moreover, the title of the statute does not provide the oomph that we found in the Miller and Bond cases.  Still, how difficult is it to take that next step, and say that the apparently clear and unambiguous language at least cries out to be reconsidered in light of Congress's crystal clear purpose in passing the AMT?

And I truly mean "crystal clear."  No matter what method of statutory interpretation one might use, the record is clear that the Congresses that have enacted and amended the AMT had in mind nothing but high-end tax games, not middle class families with ten children.  And this is where I think textualists would think that they have won the broader argument.  Professor Dorf says, "Well, look, we can at least look at the title of the act."  Then, the Klaassens say, "Well, look, sometimes there is no ambiguity when trying to determine Congressional intent."  And then we are supposedly rushing headlong down that slippery slope that the textualists hate so much, reading committee reports and transcripts of floor debates.

Again, however, I am with Professor Dorf on this one, and maybe with the Klaassens.  This is a classic example of the overdrawn fear of slippery slopes that we find so often in legal debates.  There is nothing inherently difficult about drawing clear lines that include more context.  Indeed, the anti-textualist case is built on the idea that clarity is an artificial construct in the first place, allowing judges to pretend that they are being objective merely by being unwilling to look at a fuller view of the case at hand.

In the Bob Jones University case, for example, the Supreme Court held that there is a public policy exception to the tax deduction for nonprofits.  That exception could have been applied expansively, but in the thirty years since it was decided, the Court's highly limiting language has never been expanded beyond its original holding (that an openly racist policy disqualifies a school or university from nonprofit status).  Some of us wish that the exception had been extended to other contexts, but the point is that the floodgates did not open, even when a supposedly vague exception was created.

Moreover, as Professor Dorf noted, taking account of additional information will not necessarily cause one to conclude that the language of the statute is fatally unclear.  In the case of the AMT, the opportunity for Congress to have expressed its purpose much more simply -- "We limit the provisions of the AMT to those with adjusted gross income in excess of one million dollars" -- and the clarity of each relentless step of the computation would make it relatively easy for a court to say, "You know, I'm convinced that Congress didn't want this to apply to the Klaassens, but Congress blew it, and I refuse to fix it."  But even if a court were to hold otherwise, the standard response applies: If Congress does not agree with a court, it can change the law.

In short, I take Professor Dorf's efforts to limit the reach of his arguments yesterday to be important and necessary, acknowledging that any deviation from simplistic textualism runs the danger of going too far.  However, that danger does not justify pretending that there is clarity by simply ignoring evidence of ambiguity.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 01 Sep 2014 10:30
by Michael Dorf

The recent 6th Circuit opinion in United States v. Miller provides an opportunity for discussiong a broader question about statutory interpretation: namely, to what extent, if any, does the ordinary meaning and use of a term bear on its legal meaning when the statute contains a definition that expands (or otherwise departs from) that ordinary meaning and use? I shall consider that question as raised by both Miller and last Term's SCOTUS decision in Bond v. United States. The two cases involve, respectively, hate crimes and chemical weapons.

Let's begin with Miller. As Marty Lederman explains succinctly in an excellent post on Balkinization, the Miller decision reverses the convictions of various members of the Bergholz Old Order Amish community, who forcibly attacked and cut the beards of Amish men and the hair of Amish women, in violation of their victims' religious beliefs. The acts were clearly crimes but the question in Miller was whether they were hate crimes in violation of a federal statute. The Sixth Circuit said that the statute requires that the government prove that the religion of the victims must be a but-for cause of the crime but that the jury was instructed that it only needed to find that religion was a significant factor in motivating the attack, and that this was reversible error. Professor Lederman criticizes the ruling on the ground that the evidence was overwhelming that religion was a but-for cause of the assaults in the particular cases, so that a properly instructed jury would also have convicted, and that therefore the error was harmless.

To explain my somewhat different take on the case, it will help to understand the underlying facts in a little more detail. The leader of the Bergholz group had excommunicated the eventual victims of the assault when they complained about his leadership practices. Under ordinary Amish tradition, shunning would result: no other Amish community can accept excommunicated members. Nonetheless, these excommunicates were accepted by another Amish community because they successfully argued that the Bergholz excommunication was unorthodox and unjustified. The attacks followed as retribution.

Professor Lederman notes that the attacks were motivated by the fact that some of the excommunicates were seen by the Bergholz group as "Amish hypocrites." Moreover, he argues powerfully that religion was clearly a but-for cause of the type of attack: beard cutting and hair cutting. Even if the motive for the attack was mixed, but for the fact that the victims were Amish, the attack would not have taken this form, which was meant to be, and was, particulary painful for Amish victims. Thus, he concludes that religion was a but-for cause of the attacks.

I do not disagree with Lederman's analysis but I think it is at least potentially incomplete. For while it jibes well with the text of the hate crime statute, it is an awkward fit with the law's purpose. The relevant portions of the statutory text provide: "Whoever, whether or not acting under color of law, willfully causes bodily injury to any person . . .  because of the actual or perceived . . . religion . . . of any person . . . shall be imprisoned not more than 10 years, fined . . . or both . . . ." If that were all we had, then I would agree with Lederman that the evidence is overwhelming: Religion was a but-for cause of (at least) the type of assault committed by the Bergholz defendants.

But is that all we have? I'm not so sure. The current statutory language was enacted in 2009 in the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. For those with short memories, Congress acted on the view that Shepard and Byrd were, respectively, tortured and killed by homophobic and racist bigots as an expression of their respective homophobia and racism. The Act that bears their name recognizes the special harm that hate crimes perpetrate. It recognizes that, in addition to the harm inflicted by an assault qua assault, the animus motivating the crime is an additional wrong.

Taking what was done to Shepard and Byrd as paradigmatic hate crimes, is it clear that the acts perpetrated by the Bergholz Amish were not only despicable acts but also hate crimes? They certainly did not act out of what we would conventionally call anti-Amish bias, much less hatred.

I don't mean to suggest that intra-group attacks can never be hate crimes. An African American who was victimized by other African Americans for not "acting black" or a member of a religious community who was victimized for marrying outside of the group could, in various circumstances, be deemed the victim of a hate crime. And perhaps even in Miller itself it's possible to think of the assaults on excommunicates as an example of inter-sect violence, akin to, say, Protestants attacking Catholics or vice-versa. Just because both groups are Christian doesn't mean there cannot be in groups and out groups within the larger category; that can be true with respect to sub-sects of the Amish as well. But my larger point is simply that there is a way of viewing the facts of Miller as not fitting within our ordinary understanding of the term "hate crime."

Well, one might say, so what? "Hate Crimes" appears in the title of the Act, but the actual Code section under which the defendants were charged only requires that the attack be "because of . . . religion," which does not appear to require any kind of animus or hatred. Statutes are rarely totally coextensive with their background justifications, and so here, one might think, Congress defined the crime to encompass some conduct that we might not conventionally describe as a "hate crime." In these circumstances, conventional wisdom would say that unless the statutory terms are unclear, the background purpose of or justification for the law is irrelevant.

I part company with the conventional wisdom--which seems to me to be unduly influenced by textualism--with respect to what constitutes lack of clarity. The conventional wisdom says that one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation. In my view, this approach provides too narrow a scope for the consideration of purposes, which can create ambiguity where the words alone do not appear to contain any.

Miller is an arguable example of this phenomenon. So is the SCOTUS decision in Bond. Recall that in Bond the Court construed the Chemical Weapons Convention Implementation Act (CWCIA) not to cover a garden-variety non-lethal poisoning using commonly obtainable chemicals. When the case was decided, I argued in a DoL post that the reasoning of the majority opinion by CJ Roberts rested on the (reasonable) assumption that harmful consequences of construing a text in accordance with its apparently plain meaning should lead a court to reconsider that meaning in light of the statutory purpose. And it happens that in Bond, as in Miller, the statute's very title tells us the statutory purpose: in one case to implement the Chemical Weapons Convention; in the other to punish hate crimes. Thus in neither case does the inquiry into purpose require the court to speculate about the legislative purpose.

Let me close with four caveats.

(1) I think the argument for finding textual ambiguity is somewhat better in Miller than in Bond. Even if one thinks that Congress was only trying to forbid what are considered chemical weapons in ordinary language, it's still difficult to make that judgment fit with the actual text of the CWCIA. Put differently, the clarity of the statutory definition of chemical weapons may persist, even after one takes account of effects and purposes. By contrast, in Miller, one might think that to attack someone because of of a forbidden ground means attacking someone due to animus based upon that ground. That is a narrower view of "because of" than its most natural ordinary language meaning, but still a fair reading of the language.

(2) Cutting in the other direction, in Bond the Court may have had a better justification for its narrow reading: to avoid the constitutional issue under the Treaty Power. As Professor Lederman notes, there is a similar issue lurking in the background in Miller. Because the hate crimes legislation contains no state action requirement, there is a question about Congress's affirmative power to enact it. As applied to racial attacks, it can be justified on 13th Amendment grounds, at least so long as Jones v. Alfred H. Mayer Co. remains good law. But in some other circumstances, the law would need to be justified under the Commerce Clause, which could be challenging. Nonetheless, constitutional avoidance doesn't fit with the animus requirement, as animus is not a Commerce Clause concept.

(3) I want to be clear that I'm not saying that in Miller the 6th Circuit actually relied on the animus construction of "because of." The dissent in Miller accuses the majority of doing that, but the point is not made expressly by the Miller majority itself; it is at most an implicit assumption in that opinion.

(4) Finally, I also want to be clear that I am not saying that I agree with the application of the principle I have identified here in either Miller or Bond. I am only saying that the principle--that background purposes can identify a lack of clarity that does not appear on the face of statutory text--is sound. The principle makes the results in Miller and Bond more plausible than they would be without it, but I am not claiming that it necessarily renders either decision correct.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 29 Aug 2014 11:00
by Michael Dorf

A recent New Yorker article by Jill Lepore uses the Democratic primary challenge by Fordham law professor Zephyr Teachout to NY Governor Andrew Cuomo as an occasion to problematize the concept of political corruption. I generally think highly of Lepore but this article strikes me as misguided, for reasons I shall explain below. But first, some context.

Teachout and (my former colleague) Columbia law professor Tim Wu are challenging, respectively, Cuomo and his running mate Kathy Hochul. The Teachout/Wu campaign makes what is essentially a two-pronged pitch: (1) Cuomo and Hochul are too conservative for the Democratic Party nomination; and (2) there are serious concerns about Cuomo's integrity.

Given Cuomo's name recognition and generally favorabile (albeit slipping) ratings, Teachout is a long-shot for the gubernatorial nomination but Wu has a better chance at the second spot on the ballot. Hochul is not much better known than Wu and her record as a (former) member of Congress really is quite conservative for a NY Democrat (as argued in a "dossier" released by Teachout and Wu earlier this week). For that reason, yesterday the New York Times endorsed Wu's candidacy. On Wednesday, the Times declined to endorse either Cuomo or Teachout for Governor. Although critical of Cuomo's failure to address corruption in state government and laudatory of Teachout, the Times editorial board thought Teachout too green to merit the gubernatorial endorsement; Wu also lacks political experience, but the Times was willing to overlook that fact because the Lieutenant Governor's job carries substantially fewer responsibilities. Because primary voters vote for Governor and Lieutenant Governor on separate lines, there is thus a real chance that Cuomo will get the top spot and Wu the second spot.

And then, in the event that the simmering scandal involving Cuomo's disbanding of the Moreland Commission reaches a full boil (more about that below), it is possible to imagine Cuomo resigning or being removed from office, leaving Wu as Governor. Even absent such scenarios, the Teachout/Wu campaign has already exceeded expectations in challenging a governor who, but for the prospect of a Hillary Clinton candidacy, would probably be running for President. Both Teachout and Wu have been picking up endorsements from liberal groups, and of course, they have very strong backing among the all-important constituency of law professors.

Now, about that scandal. About a year ago, Governor Cuomo appointed the Moreland Commission to investigate public corruption. Then, when the commission started investigating people with ties to Cuomo, he killed the commission. It's possible the timing was coincidental. Cuomo says the commission's purpose was to generate support for a package of reform legislation, so that once the legislation was enacted (albeit minus strong public finance provisions), the commission was no longer needed. It's also possible that Cuomo's actions were perfectly legal--just as it's possible that Texas Governor Rick Perry's zeroing out of a budget for the office investigating his alleged corruption was perfectly legal. But in both instances the actions create at least some suspicion. And even if both Cuomo and Perry acted lawfully, that doesn't mean they can't be criticized for acting sleazily. Both actions call to mind President Nixon's firing (via Robert Bork) of Archibald Cox when Cox tried to do his job as special prosecutor. Nixon had the power to do it, but he rightly paid a steep political price.

The concerns about Cuomo's integrity are a good fit for Teachout's insurgent candidacy because her academic specialty is campaign finance and she has a forthcoming book about political corruption. In a nutshell, Teachout argues that the modern Supreme Court case law--which only allows restrictions on campaign finance that target quid pro quo corruption--uses a too-narrow definition of corruption. She points to the historical record of the Founding to argue that our political tradition once deployed a broader conception of corruption.

Lepore says that Teachout's historical case is of limited value. Just as Tea Party invocations of the Founding Fathers lack relevance today, she says, so does Teachout's mining of history for more progressive ends. I think that's a fair criticism, although one might understand Teachout to be making a point about hypocrisy: It's the Court's self-styled originalists who most strongly insist on what she argues is a conception of corruption that conflicts with the view held at the Founding.

Beyond the historical point, Lepore cites scholars like Yale Law School dean Robert Post and my Cornell Law School colleague Laura Underkuffler for the proposition that "corruption" is too mushy a concept to form the basis of a political program and to (more or less) defend the constitutional status quo given to us by the SCOTUS. I haven't yet read the Post book but I have read Underkuffler's and it does not make the sweeping claims that Lepore attributes to it. Underkuffler points to the troubled past of the concept of corruption not for the purpose of abandoning it but to show that it needs to be clarified. Perhaps Post does propose abandoning efforts to get at corruption, but if he does, then so much the worse for him.

Corruption is, in fact, a relatively straightforward idea. To corrupt an institution or practice is to damage it, to divert it from its purpose. To be sure, that requires some sense of what the purpose of the practice or institution is, but with respect to many circumstances, that is not difficult to say. For example, the purpose of a municipal police force is to protect the community as a whole, so a police officer who takes private money to provide special protection (while on duty) or worse, to turn a blind eye to crime, is corrupt.

The issue is likewise simple with respect to democracy, at least so far as the big picture is concerned. We may disagree about subtleties like when a representative should vote her conscience as against the wishes of her constituencies, but we generally agree that representative government in a system of one-person-one-vote is fundamentally about giving each person an equal say in decisions that affect him or her. In practice, we tolerate various deviations from the ideal. Political communities are represented in ways that diverge from one-person-one-vote (as in the U.S. Senate); people who care more about politics speak up and thus have their voices heard more; etc.

But no one can seriously argue that it is consistent with the purpose of 21st century democracy for elected officials to give a great deal of extra weight to the interests and wishes of wealthy people who support their election simply because of that support. That is a corruption of democracy, and a harmful corruption at that. A billionaire casino owner may be an expert in running profitable casinos but is not, in virtue of his casino experience or anything else, an expert in the Middle East. Inheriting and successfully operating a multi-billion dollar multinational industrial corporation does not make people into experts on climate science. And so when such people bend government policy to their will in virtue of their campaign contributions or independent expenditures, they corrupt politics in an obvious sense. Teachout and Wu have it right.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 28 Aug 2014 15:04
-- Posted by Neil H. Buchanan

[Note to Readers: My new Verdict column was published this morning: "One Wrong Answer to Some Very Important Questions: Understanding Why Cash Payments to College Athletes is a Bad Idea."  I discuss that column in the latter part of the post below.]

According to an old adage, when all you have is a hammer, everything starts to look like a nail.  There are actually two ways to understand that adage, one innocent and one cynical.  The innocent interpretation simply says that a well-meaning person would make the best use of whatever tools are currently available.  Although there might exist more appropriate tools for a particular job, sometimes a hammer is the only tool at hand.  Therefore, if you have to drive a screw into a block of wood, you look at the screw as if it were a nail, and make the best of a bad situation.

In the cynical view, a person with a hammer starts to think the hammer is the only useful tool on earth.  Therefore, even when there really is no good way to put the hammer to use on the problem at hand, the person convinces himself that the problem will be solved by hammering everything in sight.  Every problem becomes an excuse to use the hammer.

But the cynical view can have a quasi-innocent twist.  During the Cold War, some journalists interviewed scientists at one or more U.S. nuclear weapons facilities (Los Alamos, I think, and maybe others).  Some of the scientists were asked to react to news items that suggested that the Soviet threat was receding (rumors of arms agreements, reports that Soviet technology was not as advanced as had been assumed, and so on), while other scientists were given bits of information that made things look more threatening.  In every case, both groups of scientists responded to the information by saying, in essence, "This proves that what we do here is more important than ever."

Unlike the purely innocent view, this line of thinking really does require imagining that one tool solves all problems, and to think of even apparent non-problems as even more serious problems.  However, one could easily imagine good-hearted people falling into this "innocent-cynical" mode of thinking.  In addition to being self-validating, it is simply a matter of thinking about problems through the most familiar lens: "How can I help?  By doing what I do best."  It is ultimately self-serving, but it can be unconscious

And then there is the cynical-cynical version, which we see in Republican politics all the time (and sometimes elsewhere).  One of the most damaging idees fixes of the past generation was the thought that the answer to our foreign policy problems was to invade Iraq.  Some Republicans started to think about every issue as an excuse to "take out Saddam," and it did not matter what the excuse was, nor did it matter when those excuses were debunked.  The world is still seeing the disastrous effects of that obsession.

More generally, Republicans believe that every economic problem will be solved by cutting taxes, especially the taxes that rich people and businesses pay.  The economy is strong?  Tax cuts.  The economy is weak?  Tax cuts.  There might be a bubble?  Tax cuts.  The bubble might have burst?  Tax cuts.  Combining these two obsessions, one former Republican House leader once said that the most important thing to do after we invaded Iraq was to cut capital gains taxes.

I have been mulling over this phenomenon recently because I began to notice that three of the issues on which I have written most recently -- college sports, public school teaching, and Social Security -- all show signs of being dominated by cynical-cynical solutions, perhaps with some assistance from innocent-cynical people.

Put simply, I have begun to notice how many times I have recently written something along the following lines: "But if that is really the problem, how is this a solution?"  The most recent example is in discussing the problems facing big-time college sports.  The "hammer" -- that is, the all-purpose answer to every question -- is to pay cash salaries to college athletes.  Coaches are being overpaid?  Give cash to the players.  Universities are not properly controlling athletic departments?  Give cash to the players.  Universities should arguably be paying the Unrelated Business Income Tax?  Give cash to the players.  The players are not really receiving college educations?  Cash!

I acknowledge that there are people who feel, at a deep level, that college sports should simply be treated as a for-profit business, and thus that universities should be subject to all of the rules that would apply to any other industry.  In that case, any agreement among competitors is collusive.  I fundamentally disagree with that view, because I believe that college sports can and should be used to support the educational mission of nonprofit institutions, for the benefit of the athletes and other students.  And as I explain in today's Verdict column, that can only be accomplished by cooperation that, like plenty of other nonprofit activity, is properly exempted from certain laws (antitrust in particular) that would apply to profit-seeking businesses.

But I do think that the "let 'em compete by the normal rules of capitalism" view at least has the virtue of being clear in its principles.  Although it is an idee fixe of a different sort, it is not a view that requires anyone to use every other complaint about college sports as a justification for the preferred solution.  One can quite easily think that colleges are providing a fine education to their athletes, that injuries are simply part of the game (and an assumed risk on the part of players), that coaches are not too powerful, and so on, yet still simply think that this is not nonprofit activity.  I disagree, but I appreciate the non-opportunistic nature of that argument.

Even so, most of the so-called debate about college athletics leaves one asking the question that I noted above: "But if that is really the problem, how is this a solution?"  Similarly, when I recently dug into the debates about schoolteachers (Dorf on Law posts here and here), it was amazing to see how a very well-funded, bipartisan consensus has emerged in which tenure for teachers is thought to be the root of all evil.

Teachers do not volunteer to teach in poor schools?  End tenure!  Student test scores have gone down, even while tenure has been eroded?  End tenure!  We have a hard time keeping good teachers in the profession?  End tenure!  It is all more than a bit bizarre, but it continues because advocates are too often allowed to simply invoke a problem and then sell their all-purpose snake oil.

Finally, in all of my writing about Social Security (most recent Dorf on Law post here), the "moderate" view (as opposed to the radical effort to privatize the system) is to cut benefits a few decades from now.  It does not seem to matter that Social Security is not necessarily in trouble, because we have an answer: Cut benefits in a few decades.  It does not matter that, if Social Security does ultimately face some financing difficulties, it will be because of wage stagnation during people's working lives.  People earned too little while they worked?  Cut their benefits after they retire!

Most importantly, consider the loudest complaint, that Social Security is supposedly coddling current retirees and cheating current younger workers.  The solution?  Cut Social Security benefits when those younger workers retire!  "Hey, young people.  Because our long-term forecasts indicate that there might not be adequate funding to pay 100% of statutory benefits when you get older, we are going to put cuts in place now, so that you will definitely be entitled to smaller payments when you retire.  Generational justice!"

As I noted, some innocent-cynical thinking surely supports all of these misunderstandings.  But it is mostly, I think, cynical-cynical thinking, an opportunistic hijacking of various debates to achieve goals that have little or nothing to do with the purported problems.  Is it really too much to ask that proposed solutions actually solve the problem at hand?  That is not what is really going on.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 27 Aug 2014 11:00
by Michael Dorf

In my new Verdict column I endorse the proposal for police to be equipped with wearable cameras to record police-citizen interactions. I note the legitimate concerns raised by these proposals but conclude that they can be accommodated through careful implementation. On the whole, I agree with the view that recording is win-win: It will protect citizens against abusive policing and protect honest police against bogus allegations of abuse. Nonetheless, I explain why recording police is no panacea. There will still be disputes over what the recordings show (as in the aftermath of the Rodney King beating) and the dangers inherent in all police-citizen conflicts will mean that, even when police know they are being recorded, they will sometimes use deadly force with tragic consequences. Thus, I argue that policy makers should take steps to reduce the frequency of police-citizen interactions with the potential for violence. I suggest that the increased risk of events like the shooting of Michael Brown is one of the costs of over-criminalization.

Here I want to ask whether there are implications of my analysis for "broken windows" policing. As most readers probably know, the term "broken windows" was coined in the early 1980s by James Q. Wilson and George Kelling to refer to signs of low-level social disorder: broken windows; graffiti; litter; etc. In their theory, neighborhoods with such evidence of minor disorder embolden criminals to commit more serious crimes. Conversely, aggressive policing to attack minor crime creates liveable environments and a virtuous cycle of law-abiding behavior.

The most well-known attempt to implement broken-windows policing occurred during the NYC Mayoral administration of Rudy Giuliani. He cracked down on "squeegee men"--who "cleaned" windshields of motorists stopped at traffic lights, sometimes with an implicit threat of damage to the car or worse if drivers did not agree to pay for this ostensible service; he went after graffiti artists; he targeted subway fare-beating. And--according to the proponents of the broken windows theory--it worked. The nation as a whole experienced a substantial drop in violent crime from the peaks of the late 1980s and early 1990s, but the drop in crime in New York City was substantially larger.

How much of the drop in crime was really due to broken windows policing? That is a hotly debated topic among criminologists. The causes of the decline in crime nationally and in particular locales remain unclear. Various factors to which different scholars point in varying degrees include: more police on the street; targeted policing using big data (as in "Compstat"); more arrests; longer prison sentences; the economic boom of the 1990s through early 2000s; the "big brother" phenomenon in which young people saw the devastation wrought by crack cocaine on the generation ahead of them and were scared straight; legalized abortion; the remission of violence as a "contagion"; and more.

According to one account, broken windows policing was important but not for the reasons originally identified by Wilson and Kelling. In this alternative view, the key was New York's mandatory minimum sentence of imprisonment for carrying an unlicensed firearm (in combination with very restrictive gun licensing policies). Prior to broken windows policing, a young man living in a dangerous neighborhood in NYC might typically go out armed, even if he was not a serious criminal. But knowing that the odds of an arrest for some minor offense (like fare-beating) went up under the new policing policy, he would leave his gun at home, for fear that a minor ticket would turn into a substantial prison sentence following the stop-and-frisk. Thus, with fewer guns on the street, there was less violence.

With real disagreement and puzzlement persisting among professional criminologists, I am not going to venture a guess as to how much weight should be given to each of the factors mentioned above (or others) in reducing crime. Here is a 2002 paper arguing that broken windows policing in NYC accounted for about half of the decline in robberies and motor vehicle thefts. Here is a 2006 paper arguing that there is no good evidence for the efficacy of broken windows policing.

Suppose that you are a policy maker who does not have the luxury of waiting another 20 years (or longer) for a consensus to emerge among criminologists. Suppose further that, after consulting the best experts you can find, you think that broken windows policing does play an important role in suppressing crime. (Again, I don't take a position on whether this is true; I'm just asking readers to imagine that they think it's true.) Does that mean that your administration should implement a broken windows policing strategy?

I think that, even assuming some efficacy for broken windows policing, the answer is unclear. That's because broken windows policing may reduce or suppress crime, while at the same time causing or exacerbating other problems, like friction between the community and the police, and creating more opportunities for violent police-citizen conflicts.

What I have just described is far from hypothetical. It appears to be the predicament in which NYC Mayor Bill deBlasio now finds himself. His successful mayoral campaign rested in no small part on his opposition to the stop-and-frisk policies of the prior Bloomberg and Giuliani administrations, which were very unpopular among the city's minority population. Mayor de Blasio has taken steps to revise those policies, including in the litigation still ongoing in federal court. But at the same time, de Blasio handed over the job of NYC Police Chief to Bill Bratton, who is a believer in and practitioner of broken windows policing.

As a political matter, de Blasio's choice of Bratton was shrewd. Bratton is the closest thing one can find to a rock star among major metropolitan police chiefs. He has credibility with police based on his successful prior stint as chief in NYC and his successes elsewhere. He also has credibility with the progressive and minority constituencies who supported de Blasio's election because Bratton believes in a diverse police force and at least some version of community policing. Bratton also has credibility with these constituencies because of his falling out with Giuliani, although their feuding may have had more to do with who should get credit for reducing crime than policy differences.

But at the end of the day, these considerations will only go so far. So long as Bratton's NYPD pursue broken windows policing, arrest rates will be high, and police-citizen conflicts will occur with some frequency. That may be an acceptable price to pay for keeping the violent crime rate low, but it will inevitably trade off one set of goods for another, and for that tradeoff de Blasio is likely to pay a political price. Indeed, it appears that he already is paying that price.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 26 Aug 2014 14:58
-- Posted by Neil H. Buchanan

Last Friday, the editors of The Washington Post announced that they will no longer refer to the city of Washington's NFL team by its official name, the Redskins.  "[W]hile we wait for the National Football League to catch up with thoughtful opinion and common decency, we have decided that, except when it is essential for clarity or effect, we will no longer use the slur ourselves."  Here, I will not engage with whatever remains of the debate over whether the team name should be changed, since that would simply be piling on.  (Sorry, but a post like this has to include at least one sports pun.)  Instead, I am interested in why the owner of the Redskins, Daniel Snyder, is missing out on a way to play both sides of the ball and profit from a name change.  (Last pun.  I promise.)

Along with TV money, merchandising revenues fuel modern sports, at both the professional and college levels.  Selling team jerseys and other logo-ed items to obsessed fans is a huge business.  It was not always thus.  If you watch clips from games in the Sixties and Seventies, and keep an eye on the stands, you will see something that looks strange: People wearing overcoats, parkas, fedoras, plaid scarves, and other everyday wear.  As an adolescent, I was a big fan of the great Minnesota Vikings teams that went to four Super Bowls.  (Yes, they lost all four times, but not consecutively.  I'm looking at you, Bills fans!)  I really, really wanted to buy a Vikings team jersey, but it was nearly impossible to find them; and those that were available had been priced prohibitively.

By 1999, however, when my brother and I attended a Kansas City Chiefs game, we were almost the only people in the stands who were not wearing licensed logo gear from the home team.  If a crime had been committed there (and surely there were many), a witness would have had an impossible time with a line-up: "Um, officer, I think it was one of the 80,000 people wearing a Chiefs home jersey, number 88."  (Let us leave aside the racist elements of the Chiefs' name and logo.)

From a revenue standpoint, the problem is that fan bases are finite, and even when the fans have a seemingly insatiable desire to own team merchandise, their willingness to own multiple copies of the same gear does have limits.  Even the most obsessed current fan of the Vikings that I know owns "only" one home and one away jersey for each day of the week.  This was very profitable for the Vikings while it lasted, but not a long-term revenue source.

The solution that NFL teams first tried was to change teams' uniforms every few years.  Suddenly, the kid who cherished his official Giants jersey discovered that the team had changed the uniforms, just as Patriots fans had discovered the year before, and nearly every team in the league soon followed suit.  The helmet lamps were suddenly the wrong color, and had the wrong logos or letters.  (Many Giants fans, I'm sure, felt compelled to replace helmet lamps bearing the "Giants" swooshy logo with the classic NY logo.)

When that strategy had been pushed as far as possible, the teams discovered "throwback" uniforms, where they would have players wear the uniform styles from earlier eras.  In some cases, this meant bringing out incredibly ugly, long-forgotten jerseys like the Pittsburgh Steelers 1933 uniforms.  In others, it simply meant having the team wear the same uniforms that had been superseded a few years earlier.  In each case, the "new" uniforms were a new must-own for fans.  At the college level, this reached its absurd nadir a few years ago, when both Michigan and Notre Dame agreed to play their annual game in stylized throwback uniforms.

None of these revenues are safe without trademark protection.  Uniforms are easy to copy, and cheap to produce, and the NFL and its teams thus aggressively protect their trademarks by policing sales of knock-off merchandise.  It was thus big news earlier this summer, when the U.S. Patent and Trademark Office (PTO) canceled the Washington team's trademark protection, because the team's name and logo meet the legal definition of "disparaging," making them ineligible for legal protection.  However, according to The Washington Post's article describing the decision: "The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker. ... And the trademark registrations will remain effective during any appeal process."

Snyder, the team's owner, "has steadfastly refused to consider a name change, saying the name and logo honor Native Americans."  The question is, why is he still doing so?  One possibility is that he is simply a jerk, a theory that many of the teams' fans (and any sentient observer) would strongly support.  Certainly, one can see why he would want to fight the PTO's decision.  But Snyder is not one of those early owners of NFL teams who made all of his money by buying a team for $25,000 in the Sixties and then seeing it become a billion-dollar asset.  Snyder was a private equity billionaire, and he bought the Redskins in the late 1990's essentially as a toy.  (See also Cuban, Mark.)

Which means that Snyder is not a romantic or a man of principle, and he is not someone who would make a stand for anything other than money.  So why is he missing out on a clear opportunity to make a jujitsu move with the team name controversy, and double his profits?

We know that there would be a backlash against a name change.  About two decades ago, there was a protest by a Native American group outside the Washington stadium, which was interrupted by Washington fans dressed in cowboy outfits, who surrounded and lassoed the protesters.  It was ugly.  Even short of that, however, there are still plenty of people who would shout "political correctness" and suddenly become deeply devoted to keeping the "Redskins tradition" alive, if Snyder were to change the team's name.  There are still diehard groups complaining about colleges that changed their racist names or logos decades ago, and it would be even more intense with the Washington team (because everything is more intense with that fan base).

But that merely means that Snyder could make a profit from both groups of fans.  He could announce that he felt "bullied" into changing the name, citing efforts in Congress to force his hand.  Inciting the public's sense that he had been wronged, he could then grimly say that he had no choice, and parade his star quarterback in front of the cameras, wearing a spanking new uniform for the Washington Swamprats.  (OK, that would be a bit too accurate re DC's climate and geography.)  The website for buying the new merchandise could flash across the bottom of the screen while Snyder shook his fist about the injustice of it all.

What of the PTO's ruling?  If he were ultimately to lose the appeal, Snyder could still make whatever diminished profits that he could earn in an open market.  Even if that turned out to be zero, he would still have been given a silver-platter opportunity to sell his fan base gajillions of dollars of new branded crap.  But if he won on appeal, or more intriguingly, if he could negotiate with his opponents to drop the claim in return for his agreement to choreograph an oh-so-reluctant name change, then he would be able to gain extra profits from the electrified racist ... er. traditionalist ... base of fans who will be chanting "Redskins forever" for years to come.

The interesting thing about this strategy is that Snyder does not need to say different things to different audiences.  He could go to his grave claiming that the name was not disgusting, and the people who disagree with him would still be satisfied.  He would merely count on the enraged diehards to double his profits (or more).

I doubt that I am the only person who has thought of this strategy.  What surprises me is that Snyder has not thought of it himself.  How often does a completely unprincipled person have a chance to profit by doing the right thing, all the while playing to the ugliest elements of his customer base?
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 25 Aug 2014 11:00
by Michael Dorf

In my post last week on the indictment of Rick Perry, I criticized the argument by the Perry camp that the use or threatened use of the governor's veto power for nefarious purposes cannot be the basis for a criminal charge because the state constitution assigns to the governor the power of vetoing legislation. I said that this argument was weak, "at least if not further qualified." I then explained both why the maximalist argument made by Perry is weak and how a more nuanced version of the claim could be stronger. Later in the week, Professor Volokh defended the maximalist view. Some of what he wrote addresses other issues raised by the Perry indictment, but to the extent that Volokh has offered a response to my prior post (which he quotes at length), I am not persuaded.

Volokh argues that the legislature cannot, through ordinary legislation, impose limits on the executive's constitutionally conferred veto power. Before explaining where I think Volokh goes wrong, I should note that although each of us has referred to Texas law, the argument is mostly interesting only insofar as it raises general questions of how executives interact with legislatures. Neither of us is an expert in Texas law, and so it's possible that there are peculiarities of Texas law that support or undermine general arguments that he or I have made. And, as I said in my original post, I don't have a view about whether the case against Perry is weak or strong, all things considered. I understood Professor Volokh to be answering my post in the same spirit -- i.e., discussing how these issues work in general in constitutional systems with separation of powers and in which the head of the executive has veto authority. I shall continue the discussion in the same spirit, making general rather than Texas-specific points, except where otherwise noted.

Volokh offers two related grounds for his conclusion that a governor's exercise of the veto power may not be the basis for a prosecution under the particular statutes he is charged with violating: 1) Ordinary legislation cannot override a constitutional provision, so insofar as the state constitution confers on the governor unfettered discretion to exercise the veto power, that constitutional grant of power takes precedence over any legislation; and 2) A governor's veto acts as a check on the legislature, so it would also violate separation of powers for the legislature to place limits on the governor's exercise of the veto power.

These propositions strike me as sound, so far as they go, but I don't think they go as far as Volokh assumes. So, where do we disagree? The core of our disagreement is over proposition 1, which strikes me as an overstatement. A governor or president has complete discretion to exercise the veto power for good or bad policy reasons, or as part of a log-rolling or horse-trading deal, but that does not mean that he or she can never be held criminally liable--at least absent something more than the constitutional assignment of a veto power--for using that power in other, corrupt ways.

Some constitutions have particular provisions providing partial or even total immunity for acts taken in various official capacities. For example, the Speech or Debate Clause of Article I, Sec. 6 of the U.S. Constitution confers such an immunity on members of Congress. The U.S. Constitution contains no such express immunity for executive actions of the President, although in Nixon v. Fitzgerald the SCOTUS relied (partly) on principles of separation of powers to fashion a judge-made doctrine giving the President absolute immunity against civil suits for acts taken in his official capacity; there may be some similar immunity against criminal charges under the federal Constitution, while the person remains in office; however, the impeachment clause makes clear that after a president is out of office he may be subject to criminal sanctions ("but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law").

Does the Texas Constitution provide the Governor with immunity against criminal prosecution either during his tenure in office or permanently? As I've said, I'm not an expert in Texas law, so it's possible, but I doubt it.  If there were some such express or judicially implied immunity, wouldn't Perry or his defenders have invoked it? In any event, the key point in my last post and this one is that the argument made thus far-- the one I'm critiquing--doesn't rest on any special immunity from prosecution. The argument asserts that the power to veto--in itself--necessarily entails immunity from criminal prosecution under an ordinary law because such a prosecution would be inconsistent with the constitutional assignment of the veto power to the governor. That's the claim that strikes me as overstated.

To see why, consider an analogous question involving rights. It is conventional to say that there is a First Amendment right to burn a flag, per Texas v. Johnson. But it does not follow that someone exercising that right is immune from prosecution for other crimes he commits while happening to burn a flag. If Shmonson used a burning American flag to deliberately set fire to his neighbor's house, he could be prosecuted for arson. If Gronson used a burning American flag to torch his own failing candy store to collect the insurance money, he could be prosecuted for fraud.

Professor Volokh attempts to show that a governor is immune from prosecution for exercising the veto power by giving a number of examples in which the legislature specifically outlaws particular uses of the veto power. Yet his examples are plainly irrelevant to the question of whether the governor can be prosecuted under a general statute when the governor happens to violate that general statute by exercising the veto power. They are like the Texas law that specifically targeted flag desecreation in Texas v. Johnson, not like the arson law or the fraud law.

Volokh does give one hypothetical example in which a governor is prosecuted under a general statute, but it's a peculiar one.  Here's his best example:
Say that a governor vetoes a bill appropriating money for some public health measure. Someone dies, allegedly because of the veto (i.e., the person wouldn’t have died had the measure been funded). A prosecutor then charges the governor with “depraved heart” murder, meaning (roughly) that the governor acted despite his knowledge that there was a very grave and unjustified risk that his veto would cause death. Or perhaps the prosecutor charges the governor with negligent manslaughter, meaning (roughly) that the governor was grossly negligent in vetoing the law.
I agree with Volokh's intuition that charging the governor with murder or manslaughter in this example would violate the best conception of separation of powers, but not with his conclusion. For one thing, given the libertarian cast of American criminal law, in this context the veto looks like a non-culpable failure to rescue rather than an affirmative act. Moreover, the particular consequences here are inextricably tied up in the governor's policy judgment about whether the public health measure is wise. Presumably the proponents of the health measure argue that absent the measure, people would die, whereas opponents argue either that they wouldn't or that if they do, that's unfortunate but that funding the measure would have other harmful consequences, such as raising taxes, increasing the deficit, etc. Volokh's example really only shows that under the best conception of separation of powers, a governor cannot be prosecuted for the foreseeable consequences of a questionable or even bad policy decision.

But that is not enough. My claim, and presumably the claim of the prosecutor in the Perry case, is not that every time a governor vetoes a law he can be prosecuted for doing so. I am simply denying the Perry camp's equally sweeping contrary claim, namely that a governor can never be prosecuted for exercising the veto power.  Even one example of a circumstance in which separation of powers is not offended by prosecuting a governor for his exercise of the veto power would suffice to rebut the maximalist view of Perry's defenders. And we already have one: bribery. As I noted in the earlier post, a governor who vetoes a bill as part of a quid pro quo for a a bribe can be prosecuted for bribery, notwithstanding the fact that the governor has unfettered discretion to make a good or bad policy choice in deciding whether to sign or veto a law.

Volokh does not deny that a governor could be prosecuted for bribery in connection with the veto power, but instead argues that bribery is somehow unique--an exception that proves the supposed rule that a governor cannot be prosecuted for the exercise of the veto power. He attempts to distinguish bribery from all other crimes in three ways. Let's consider them in turn.

1) Volokh cites the 1972 SCOTUS decision in United States v. Brewster, which said that the federal statutory crime of bribery consists in taking the bribe, regardless of "performance of the illegal promise." That's true. It's even possible to read Brewster as relying on a principle of constitutional avoidance for that reading of the statute--although it would be very odd for the Court to apply constitutional avoidance to make it easier to convict a criminal defendant. But let's suppose that we read Brewster for all it is worth. It would mean that the federal Constitution requires that, as applied to members of Congress, the crime of bribery must refer only to the acceptance of a bribe, not the performance of the act for which the bribe is paid. But only for members of Congress, because the constitutional question in Brewster was whether the crime of bribery violated the Speech & Debate Clause, which, as I noted above, is a special immunity for legislators. It is not a general entailment of separation of powers, so it does not apply to the federal executive, much less to executives in all governments with separation of powers.

2) Volokh next says that "there is a special provision of the Texas Constitution that expressly forbids accepting a bribe by an official (including the governor), and authorizes criminal punishment for such behavior." I think Volokh means by this to suggest that, in the absence of this special provision, separation of powers would forbid bribery prosecutions of the Texas governor for the exercise of the veto power. Yet (other than the addition of a line-item veto), the veto provision of the Texas Constitution is very similar to its federal counterpart, which does not need a "special provision" to authorize bribery prosecutions. How do I know the federal veto clause does not create the need for such a special provision? Because the impeachment clause recognizes that the President and other officials may be impeached (and later prosecuted) for "Treason, Bribery, or other High Crimes or Misdemeanors" without specially enumerating what those sundry other crimes are.

As for the Texas Constitution, I'm not sure what "special provision" Volokh is referring to, but the portion of the Texas Constitution setting out the executive powers contains no reference to bribery. There is a general provision of the Texas Constitution that forbids someone who obtained his office via bribery from continuing in office, but that's not at issue with respect to Governor Perry. His case would appear to be governed by another provision in the same Article of the state Constitution obligating the legislature to enact laws that "exclude from office persons who have been convicted of bribery, perjury, forgery, or other high crimes." The reference to unspecified other crimes strongly implies that the background assumption is that gubernatorial misconduct--whether in the use of the veto or some other way--is subject to prosecution, regardless of whether it takes the form of taking bribes or something else. Far from showing the uniqueness of bribery, this "special provision" shows that bribery is merely one of a large class of crimes for which governors can be prosecuted as a consequence of their abuse of power.

3) Volokh then adds that "the risk of prosecution for bribery is far less of a deterrent to a veto (assuming the governor hasn’t been bribed) than the risk of prosecution for violating [other laws], precisely because a prosecution for bribery has to show an agreement to take a bribe — not just a supposedly improper intent behind the veto." This seems to me both wrong and irrelevant.

It's wrong because sophisticated corrupt government officials have ways of taking bribes that are proved in much the same way as other kinds of corruption charges. Unless they are idiots, corrupt government officials do not receive checks with "bribe" written in the memo section; they do not even usually receive bags of small unmarked bills; they typically take otherwise legal campaign contributions in exchange for otherwise legal conduct; or they funnel money through intermediaries. Thus, prosecuting such an official for accepting bribery involves the same sort of evidence as is needed when prosecuting an official for other forms of corruption in which intent is critical. The current corruption prosecution of former Virginia Governor Bob McDonnell makes this point pretty clearly: it is not disputed that McDonnell and his wife took gifts from Johnnie R. Williams; the sticking point is why, just as it would be if the question were improper use of the veto power.

Moreover, even if Volokh were right that proof that a governor illegally took a bribe in exchange for a veto would be more concrete than proof that a governor committed some other crime by exercising his veto power, so what? That would simply mean that, other things being equal, it would be easier for governors to get away with committing one kind of crime than another. It would not mean that the exercise of the veto power is immune to prosecution for all crimes other than bribery.

Accordingly, I think Volokh's efforts to distinguish bribery are wholly unavailing. Still, it is worth considering why he tries so hard to distinguish bribery. He apparently shares my strong intuition that a governor who took a bribe to veto (or to sign) legislation should be subject to criminal punishment for that offense, and that to preserve his separation-of-powers theory he therefore needs some way to show that bribery is unique--that no other offenses may be committed in the exercise of the veto power. That the effort is unavailing is important, but the fact that he makes the effort at all is revealing.

I'll offer one more example of a crime at the federal level that undermines the strong separation-of-powers claim. Consider treason. (Spoiler alert!): Imagine a scenario based on The Manchurian Candidate or Homeland if Brody had become president and remained loyal to his former captors: U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

Note that the two examples I've given--treason and bribery--are the two expressly enumerated grounds for impeachment of the President, and both are crimes that can be committed through the exercise of the veto power. There is nothing in the text or structure of the Constitution that would lead to a different result for the other, unnamed high crimes and misdemeanors for which a president can be impeached and subsequently prosecuted. Nor is there anything in the general principle of separation of powers that would lead to the conclusion that treason and bribery are unique in this regard.

Is it possible that a court might nonetheless construe the veto power of the Texas governor in the maximalist fashion I have criticized? Sure. And it's also possible that one or more of the Texas charges will be held inapplicable to Perry's alleged conduct on purely statutory grounds, or that he might be acquitted on the facts. But nothing I've seen thus far from Professor Volokh or anyone else supports the broad claim that a purely discretionary power to veto on policy grounds implies immunity from criminal prosecution for the exercise of the veto power on corrupt grounds.
Author: "noreply@blogger.com (Michael C. Dorf)"
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