All conservatives, most pundits and even some Democrats seem to assume that it would have been illegal for President Obama offer Joe Sestak a job in his administration in order to clear to decks for Arlen Specter in Pennsylvania, even though Rove did it, and Reagan did it, and many other Presidents have done it, and no one ever imagined it was a crime before now.
This non-scandal doesn't seem to go away, and I could find no explanation of why it might be a crime that goes beyond an inaccurate paraphrase of the plain language of the statute so I decided to do a little research yesterday when I found myself near a law library. I think a discussion of the law may help people to understand just how phony the clamor over this so-called crime is.
I have a second question about this so-called scandal, if the offer of an administration job to a politician who is running for political office at the time is a crime, and there is no consideration other than acceptance of the job, is the statute constitutional? Doesn't this violate separation of powers? Doesn't the president have the authority as chief executive to offer a competent individual a job in his/her administration without regard to whether that individual is currently running for other political office?
As we all know by now, the allegation is that the offer of an administration job to entice a candidate to leave a primary is a violation of 18 USC Sec. 600. The statute is pretty dense and not really self explanatory. It reads:
Whoever, directly or indirectly, promises any employment,
position, compensation, contract, appointment, or other benefit,
provided for or made possible in whole or in part by any Act of
Congress, or any special consideration in obtaining any such
benefit, to any person as consideration, favor, or reward for any
political activity or for the support of or opposition to any
candidate or any political party in connection with any general or
special election to any political office, or in connection with any
primary election or political convention or caucus held to select
candidates for any political office, shall be fined under this
title or imprisoned not more than one year, or both.
You can find all of Chapter 29 regarding election crimes, and the relevant legislative history
here.
In short, 18 USC section 600 makes it a misdemeanor to promise employment as consideration for "political activity," or for the support of or opposition to any candiate or any political pary. Everyone seems to assume that dropping out of a primary race is either "political activity" within the meaning of the statute, or constitutes support of or opposition to a candidate in the election. I'm not so sure. Accepting a job that takes you out of a campaign is not within the plain language of the statute. It is not the same thing as supporting or opposing a candidate in the election. "Political activity" is not defined by the statute or by case law, and dropping out of a primary race has never been prosecuted under the statute. The only thing I can find that has ever been prosecuted under this provision is Herbert Kalmbach's promise to J. Fife Symington that he would get a more prestigious ambassadorship if he gave $100,000 to the committee to re-elect President Nixon.
It is customary to interpret laws in light of the legislative history, especially when a very broad interpretation of the statute would be unconstitutional. Legislative history is sometimes used to narrow a statute within constitutional bounds. This section first became law in 1939 as part of the Hatch Act, and it was codified as 18 USC section 61. The statute was enacted as part of a statutory scheme primarily designed to prevent coercing or manipulating federal employees into "political activity" in support of their political employers, and political activity meant campaigning, fundraising, canvassing, that kind of thing. The evil the statute sought to prevent was forcing employees to support their employer through political activy by the promise of promotions or better jobs if they did, and the denial of routine reappointment or promotion if they did not. Using federally financed employment to obtain campaign contributions or campaign activity is clearly illegal under this statute.
I couldn't find any reported case of a prosecution involving an offer of employment in exchange for political activites under either 18 USC section 61 or 18 USC section 600. This is remarkable considering how long the statute has been on the books. As a result, there is no case law definition or precedent defining "political activity." I think that makes a pretty persuasive case that "political activity" does not include a president using his appointment powers to shape the electoral landscape. As I mentioned in the introduction, Rove did it and Reagan did it. In fact, lots of politicians have done it. See also the comments at FrumForum on this topic.
The Hatch Act has been amended pretty often and the 1972 version included campaign finance reform. The campaign finance reform part was litigated on constitutional grounds in Buckley v. Valeo. The principal concern there was the corruption inherent in cash contributions to political campaigns. The circuit court case in Buckey interpreted the constitutionality of campagin finance restrictions in light of the investigative hearings chaired by Sam Ervin, and the Final Report of the Select Comm. on Presidential Campaign Activities, S.Rep.No.93-981, 93d Cong., 2d Sess. (1974), and the court concluded that the statute was intended to limit the corrupt influence of money in campaigns. More than $1.8 million in Presidential campaign contributions came from 31 persons appointed to ambassadorahips and another $3 million came from six other large contributors who were actively seeking appointment at the time of their contributions. They all evaded prosecution because fundraisers told them that only the president could guarantee appointments. But the overt sale or attempted sale of federal employment would be illegal, and the Symington bribe case I mentioned earlier came out of the special investigation.
In conclusion, I found no statutory language, enforcement history, or legislative history to support the theory that an offer of employment in exchange for dropping out of a primary election is a crime. I don't think an offer of employment in the context of an election is a crime unless it is in consideration for money or some other other thing of value, or it is offered to a federal employee in order to coerce political activity. And I think that Democrats should stop acting like it might be a crime. I don't think that the administration can make the conservatives give up their witch hunt by being more transparent. More information will only feed their frenzy. Instead, I think someone from the administration should say: the allegations if true do not describe conduct that would be either illegal or unethical and any discussion of what administration jobs may or may not have been offered to anyone is confidential. Furthermore, if the act were interpreted to cover offering employment to a person engaged in a political campaign then the statute violates the separation of powers. What do you think?
Finally, this is my first diary so I really don't know how to do things like monitor comments, but I will try. Please be patient with me. I have searched in vain for a diary that covers this issue. Barbara Morrill had a diary a few days ago about the Republican call for a special prosecutor that included some discussion of the basis for the allegation that the offer of a job to Sestak is a crime, but no real discussion of the issue occurred. I have read the rules and tried to follow them. Let me know if I should do something and I will do it.