Monday, June 27, 2016


This decision won't get as much attention as other rulings that came out today, but it's worth noting.  Especially for those following the story of former Oregon Governor Kitzhaber.
The supreme court without dissent vacated the conviction of the former governor of Virginia on corruption charges, because the construction of bribery used in the case was overly broad.
I think the heart of the ruling is here:
Section 201 prohibits quid pro quo corruption—the exchange of a thing of value for an 'official act.'  In the Government’s view, nearly anything a public official accepts—from a campaign contribution to lunch—counts as a quid; and nearly anything a public official does—from arranging a meeting to inviting a guest to an event—counts as a quo...

But conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns
That is, the conduct potentially subject to criminal sanction is the root of democracy. You like candidate X, you work for their re-election. There is a quid. They in turn pursue policies you like. There is a quo. Is that corruption?

Separate but related is the arbitrariness of a broad definition, and how that's incompatible with due process, emphasis mine:

...under  the  Government’s  interpretation,  the  term  “official  act”  is  not  defined  “with sufficient  definiteness  that  ordinary  people  can  understand  what  conduct  is  prohibited,”  or  “in  a  manner  that does  not  encourage  arbitrary  and  discriminatory  enforcement.” Skilling, 561 U. S., at 402–403 (internal quotation marks  omitted).   Under  the  “‘standardless  sweep’”  of  the  Government’s reading, Kolender v. Lawson, 461 U. S. 352, 358 (1983), public officials could be subject to prosecution, without  fair  notice,  for  the  most  prosaic  interactions.  “Invoking so shapeless a provision to condemn someone to prison”  for  up  to  15  years  raises  the  serious  concern  that the  provision  “does  not  comport  with  the Constitution’s guarantee  of  due  process."
I think what these concerns have in common is a fear of separating politics from the people.  If we want self government, we need to allow for political leaders like us.  It's unreasonable to expect politicians to sequester themselves like monks, interacting with the public only through formal public hearings or sessions.  And we probably wouldn't like it if they did.