“The Criminalization of Politics”

August 21, 2014
posted by Bob Bauer

If there can be said to be an “establishment” response to the Perry indictment, it has been loudly expressed so far in his favor. This is understandable: a case about a veto, or the threat of a veto, built on a vaguely worded statute and poorly illuminated by a two-page, summary indictment, was bound to raise questions.

But Perry has not only been defended against the application of the Texas statute in question, but also more profoundly as a victim of the “criminalization of politics”. Even if the law could be construed to reach the alleged conduct, it is argued, it should not be. Whether the Governor was moving to oust an adversary from office or protecting contributors from an inquiry into state grants, the prosecutor is mistaking hardball politics for corrupt politics. It is one example among others, the critics say, and they point to the failed Edwards prosecution as another instance of the same irresponsible application of the criminal laws.

The “criminalization” of politics is self-evidently undesirable. Then again it is far from sure what the argument against it is meant to cover, that is, the nature of the “politics” that we should worry about criminalizing.

American politics is regulated, and most every rule laid down civilly can be enforced criminally. For example, a number of commentators disgusted with the Perry indictment would like strengthened enforcement of the law against “sham” issue advertising that allegedly permits tax-exempt organizations to evade public disclosure of campaign-related expenditures or independent committees to cheat on the political contribution limits. In the 1990’s the Department of Justice was successfully urged to establish a Task Force to consider prosecutions of just these types of offenses. McCain Feingold strengthened and extended the criminal penalties in federal campaign finance law. See, e.g. Joseph E. Cantor and L. Paige Whitaker, CRS Report for Congress, Bipartisan Reform Act of 2002, Summary and Comparison with Previous Law (January 9, 2004) at 15. Calls for criminal prosecution of these offenses continue to this day, from the same reform voices that question the soundness of the Perry indictment.

A conceivable answer is that the law is the law: once a rule has been enacted to prohibit specific conduct, it cannot be disregarded. But this argument, in this context, is not particularly strong. The most heated attacks on political spending, accompanied by calls for criminal enforcement, do indeed involve rules, but the rules are ones whose interpretations or applications are highly contested. Questions of notice and mens rea complicate plans to bring the criminal laws into play. But the potential for criminal sanctions—investigation and charges– still exist. And often the reason for the conflict over the meaning of the law is precisely a difference over what constitutes “hardball” but normal politics and what should treated as “corrupt”.

So to worry about the criminalization of politics requires agreement about what should be included in the definition of normal “politics”. When does a contribution express support for legislative action and when does it “buy” it? When does a politician pledging certain actions reasonably hope for contributions from those who want him to do it—and when he is “selling his office”? When does the concerted action of candidates and allies groups represent smart, desirable coalition politics, and when does it fall within the zone of illegal “coordination”?

.In various ways, these brands of politics and others have already been “criminalized” but not with consistent clarity of purpose. Tom Edsall has pointed out that the political corruption bandied about in political debate, and that inspires various political reforms, is not clearly defined. And yet it is corruption that, denounced in strident, moral terms, gives rise to calls for criminal penalties–for the invocation of the most severe sanction that a legal system can impose upon a wrong-doer.

Ruth Marcus has argued that one question to be asked is whether the politics has been openly conducted, or carried on in the dark, and she distinguishes the public fight Perry waged over the Austin DA’s Public Integrity unit and former Governor McDonnell’s personal dealings, unknown to the public, with a businessman seeking State support for his product promotions. Marcus relates to the lack of transparency in the McDonnell case to the element of personal gain, including the cost of a daughter’s wedding and the gift of a Rolex watch.

These distinctions do not provide altogether reliable guidance. A case like Perry’s may still expose quiet plotting against the Travis County DA office that the Governor and his aides may have had good reason to keep out of public view. And the edifice of political reform rests on the belief that, carried too far, the pursuit of political self-interest is a form of personal self-interest, not to be confused with the public interest. If a politician is stashing away campaign funds by rewarding contributors with state favors, misspending public funds and diverting resources from their intended public use, he is engaging in a form of self-interested behavior, with as much if not more harm to the polity as that which is caused by the acceptance of a personal gift from a donor or supporter.

Maybe troubled observers of the Perry indictment mean to locate the problem not so much in the law on the books as in the prosecutor’s exercise of “discretion”. But this is also little comfort for those worried about the criminalization of politics. Complex laws with sweeping application to political behavior present the opportunity for the exercise of bad judgment. And once the opportunity is taken, what typically follows are suspicions about a political motive behind the choice to exercise discretion.

Cases like the Perry case or the Edwards case are too unusual to stand as the best examples of the problem of a criminalized politics. The first problem is that it is not clear what term means and the understanding of it varies dangerously with different conceptions of politics.



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