The Senate is currently considering the addition of a public corruption bill as an amendment to the STOCK Act. While the goal of reining in public corruption is laudable, as has been discussed before, many of the policies in the proposed amendment raise significant overcriminalization concerns.
Heritage, a task force of the American Bar Association, and other leading legal scholars have pointed out the problem of the increasing federalization of crime. And yet Congress continues to enact new criminal laws targeting state and local conduct. The proposed amendment seeks to expand the federal criminal code yet again, this time to broadly define a criminal offense of unreported self-dealing in a way which covers local government officials. The federal government does not have plenary police powers. In those areas where the courts have permitted Congress to enact criminal law targeting local conduct, lawmakers should abide by the principle that just because the courts may accede to congressional intrusion into areas of state concern does not mean that Congress should do so. There are ample state laws and political checks to address these concerns without Congress aggrandizing its authority beyond proper constitutional limits to address every local ne’er-do-well.
But the problems don’t end there. The amendment strips mens rea (criminal intent) provisions and bright-line dollar thresholds that would have to be met to trigger restrictions on gratuities given to an official for official acts which were in a House version of the bill.
This would be a great opportunity for legislators to improve existing law by including clearer criminal intent requirements, an opportunity that is being squandered. In Without Intent, Heritage and NACDL explained the importance of criminal intent language in our criminal code in order to reach only those who commit truly blameworthy acts.
Furthermore, the definition of “official act” is being expanded so significantly that it could sweep in conduct well beyond that which Congress intended. Rather than just including a “decision or action on any question, matter, cause, suit, proceeding, or controversy” that is currently or may in the future be before the public official, it encompasses “any act within the range of official duty.” Where does such a “range” start and end? There is no clear definition to what this might encompass.
This amendment also proposes increases to many of the maximum penalties for these offenses, including elevating misdemeanors to felonies, and increasing the number of years of imprisonment that felony offenses carry. While this might give prosecutors other charging options, I am not aware of any argument that current penalties are insufficiently deterrent, or don’t adequately punish offenders.
There is also a serious procedural concern with the way this amendment is being presented in that it ignores proper committee review process. This amendment, although being touted as an improvement on work that the House has done, is substantially different than both the House and Senate versions, which only survived subcommittee and committee votes, respectively.
As appealing as it might sound to give members of Congress a taste their own medicine, this proposed amendment would have a more devastating, far-reaching effect on all elected officials, and in some cases private citizens, at all levels. The amendment is a textbook case of overcriminalization: over-reaching federal criminalization, unclear terms, and inadequate criminal intent language.