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When Does Politicians' Unethical Behavior Become a Crime?

Over the past few decades, it’s become easier to convict public officials for corruption but harder to know who’s really guilty of it.

Many years ago, I spent a morning in the Pima County courthouse in Tucson, Ariz., talking politics with Conrad Joyner, one of the county supervisors. Joyner was running for Congress. I asked him if he expected to have any trouble raising money for his campaign. Joyner looked at me as if I had been born yesterday. “Are you kidding?” he said. “With all the zoning cases I’ve got coming up on the county board?”

I walked out of that courthouse trying to make sense of what I had just heard. Joyner seemed to be telling me he planned to extort campaign money from real estate developers who wanted his vote. Or maybe he just wanted the developers to think his vote was for sale so that he could pocket the money for his campaign and then vote his conscience. Either way, there was something sleazy about it. But if there were no conversations about a deal and no quid pro quo, the law couldn’t touch it. That didn’t seem quite right.

I remembered that morning in Tucson a couple months ago when Sheldon Silver, the speaker of the New York State Assembly, was arrested and charged with five federal counts of mail and wire fraud, conspiracy and extortion. According to the U.S. attorney who is prosecuting him, Silver collected large legal fees from patients suffering from asbestos-related illnesses, all of them sent to him by a prominent New York doctor. In return, Silver helped the doctor out by steering $500,000 in state grants to his research organization. He also stands accused of steering real estate developers to a law firm in which he had an interest in exchange for helping the developers with their legislative priorities in Albany.

What Silver is alleged to have done bears a resemblance to what passed for politics as usual in Chicago in the 1950s, when I was growing up there. Richard J. Daley, who was mayor at the time, used to offer a succinct piece of ethics advice to newly elected aldermen. “Don’t take a nickel,” Daley told them. “Just show them your business card.”

Even the greenest of political newcomers understood exactly what Daley meant. He was telling them that people with an interest in city council decisions would be happy to throw an alderman a little cash on the side to help bring about a favorable outcome. They just had to find an acceptable way to do it. A law office was a good place. Petitioners who needed a favorable council vote could be depended on to pay generously for a little legal work. An insurance agency was even better. Aldermen who had insurance licenses could earn a handsome income writing up policies on buildings owned by politically needy landlords. Alderman Harry Sain, who represented the Skid Row neighborhood just west of downtown Chicago for 35 years, collected the insurance premiums on just about all the flophouses that stood there. And somehow those flophouses managed to pass code inspection year after year.

This was a couple of steps sleazier than the scheme I had heard about in Arizona. But it was all considered quite legal, at least in the ethical climate that existed in Chicago at the time. There was no quid pro quo, or any need to discuss out loud what the petitioners might want the city council to deliver for them. That part was understood. If a landlord or a building contractor or a labor union wanted to flatter a public official by doing business with him, they had every right to do so.

The rules are different now at all levels of American government. Public officials run the risk of being prosecuted for the things Sain did in Chicago, or even, in some cases, for the kinds of things Joyner boasted to me about in Tucson. The age of laissez-faire political tolerance has been replaced by something almost as disturbing in its own way. It has been replaced by a system in which the law is convoluted and the rules have been written to satisfy the ambitions of the public prosecutor.

Consider for a moment Sheldon Silver’s case, or at least the portion of it that has been made public so far. Did Silver commit extortion? You wouldn’t think so at first. As it turns out, though, federal law has for many decades stretched the meaning of extortion far beyond any common appreciation of the word. The Hobbs Act, passed by Congress in 1946, says that perfectly voluntary transactions can qualify as extortion as long as one of the parties is acting “under color of official right.” Silver held the official position of Assembly speaker, so under the terms of the Hobbs Act he could be an extortionist even if he never asked for anything.

And in case the charge of extortion doesn’t stick, prosecutors could try Silver for “honest services fraud,” a concept that lacks any precise meaning at all. A public official can be indicted and convicted on federal mail fraud charges if prosecutors can convince a jury that he or she deprived the public of “the intangible right of honest services.”

Honest services fraud was written into federal law in 1988 to help federal prosecutors put away shady public officials who could not be found to have committed any tangible criminal offense. If that strikes you as disturbingly vague, you are not alone.

In 2010, the U.S. Supreme Court finally decided that prosecution for vague honest services fraud was wrong. It ruled unanimously that the concept could be used in court only in cases that involved actual bribery or kickbacks. In theory, this should have put an end to prosecutorial abuse. In practice, it can be an invitation for prosecutors to extend the definitions of “bribery” and “kickback” beyond normal human understanding.

My purpose in bringing all this up is not to induce sympathy for Silver or to suggest that he is innocent of all his alleged offenses. If he used his public office for improper personal gain, he should be punished. The point is that high-profile cases like this one demonstrate the rickety character of criminal law as applied to the behavior of public officials. Once largely blind to the subtle misdoings of those in office, it has been tilted to give prosecutors an added advantage when it comes to obtaining convictions for public corruption. Sometimes it serves to put greedy criminals behind bars. Other times it is used to manufacture crimes where they do not exist.

The most blatant example of flimsy prosecution involves former Alabama Gov. Don Siegelman, who has spent most of the past decade in prison on charges that he violated the honest services law and committed bribery by offering a job to a man who contributed to his statewide campaign for a lottery. Siegelman didn’t demand or accept any money for his personal use. The smoking gun, if you want to call it that, was Siegelman’s comment to an aide that the lottery contributor would probably want to be rewarded with a seat on a state health-care regulatory board and that such an appointment would not be difficult to arrange.

Common sense tells us that Siegelman’s recorded conversation amounted to nothing more than an acknowledgment of the way campaign finance works in this country and that if he committed a crime, a substantial portion of Congress and the nation’s state legislators should be tried and convicted as well. A large cadre of members of Congress, legal scholars and prominent journalists have asked President Obama to pardon Siegelman, but as of this writing he remains incarcerated in the Oakdale federal prison in Louisiana.

Siegelman has been caught in the jaws of a legal system that lurched in a couple of decades from laughable leniency to vindictive and dubious intolerance. It may be unfair to put Siegelman and Silver in the same category, but the upcoming legal proceedings against Silver will still place the nation’s anticorruption laws on display for everyone to look at.

Is there a way to police the conduct of elected officials that doesn’t put prosecutors in the role of either inept bystanders or avenging zealots? Some would-be reformers think there is. Zephyr Teachout, a Fordham University law professor who ran unsuccessfully for governor of New York last year on an anticorruption platform, argues that the real scandal in the system isn’t the number of public officials who act illegally but rather the vast array of ethically questionable behaviors that are perfectly legal. Teachout would ban outside income for elected officials, provide generous public financing for candidates and undo the Supreme Court decisions that allow virtually unlimited campaign contributions from private corporations.

None of those things are going to happen anytime soon. The Supreme Court is not disposed to reverse itself on campaign finance, nor are the states going to accomplish that by constitutional convention. Public campaign financing is an experiment that the public has consistently said it doesn’t want. And while barring outside income for legislators might sound like a promising idea in New York, where an Assembly member earns $79,500 a year plus a per diem, it would be completely unrealistic in some of the smaller states, where legislators who take in nothing beyond their salaries would be flirting with the poverty line for a family of four.

Impractical as Teachout’s remedies seem, however, she makes one fundamental point that is hard to escape: Unethical behavior in any realm of American politics -- maybe in politics anywhere -- is essentially a structural problem, not a legal one. Drawing a nearly invisible line in the sand and then pouncing on a few who seem to cross it serves mainly to disillusion the public about the soundness of democratic government. “Whether influence is bought through a bribe, outside spending, outside income or campaign contributions,” Teachout writes, “the public suffers in the same way. Until we move past scandals toward structural change, our democracy will suffer too.” I’m afraid she’s right about that.

Alan Ehrenhalt is a contributing editor for Governing. He served for 19 years as executive editor of Governing Magazine. He can be reached at
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