New Federalism's Unanswered Question: Who Should Prosecute State and Local Officials for Political Corruption?

Abstract

This Article examines a fundamental tension in the effort to attack corruption and achieve reform. Many prosecutions of state and local officials are brought by the federal government. Yet, the Supreme Court, through its New Federalism jurisprudence, is carving out an enhanced vision of state sovereignty. One aspect of sovereignty is the ability not only to choose officials, but to control their conduct while in office and to discipline them. Yet the national sovereign often polices state officials. Section I examines the statutory basis of the prosecutions. The Article contends that, contrary to the general view, the relevant statutes are clearly aimed at political corruption. They represent a conscious national decision to pursue corrupt governmental activity, rather than simply criminal laws that happen to reach illegal official behavior. Section II examines major themes of the Court's New Federalism, as well as academic commentary. The analysis emphasizes the extent to which the cases present the states as almost mini-republics. Section III focuses on the inconsistency between the anti-corruption prosecutions and the New Federalism. Particular emphasis is placed on the concept of accountability. Cases such as New York and Printz focus on citizens knowing whom to blame in the case of government actions with which they do not agree. It is essentially the same notion of accountability that embraces the discipline of an official potentially guilty of wrongdoing. Section IV begins the search for lines of authority that might support an active national role. It analyzes the patronage cases, beginning with Elrod v. Burns. I find in them more than just the First Amendment analysis principally relied on; they are presented as endorsing national oversight of state political processes. The cases are analyzed as reaching beyond the franchise - indeed, voting rights precedents play little or no role - and extending to the ongoing neutrality and fairness of government. The cases provide some support for the federal role that the corruption prosecutions represent. Section V seeks other possible bases of support for a protective role. Numerous themes in the American legal tradition are relevant to the question of guarding the guardians. States may be unable to police certain problems adequately, especially if those involved are investigating themselves. The national government has always shown a special solicitude for matters such as the franchise, the electoral process, and the protection of civil rights. I also examine the development by the lower federal courts of the doctrine of the citizen's intangible right to honest services. Section VI examines scenarios in which the Court might face the reconciliation problem. One area is the use of the affecting commerce jurisdictional element in the Hobbs Act. I consider the possibility of a substantial curtailment here, as well as in the jurisdictional reach of the mail fraud statute. The Court may reconsider substantive issues, such as the scope of the honest services doctrine. A particularly likely battleground is the federal program bribery statute, 18 U.S.C. Sec. 666. There is considerable ferment in the lower courts about the reach of a statute which appears to criminalize a range of behavior in any jurisdiction receiving a threshold level of federal funds, regardless of the existence of any connection between the conduct and the funds. The most interesting debate centers on the extent to which Sec. 666 is a use of the Necessary and Proper clause to augment the Spending Power by ensuring that there is honesty throughout recipient jurisdictions. In sum, I see areas in which the New Federalism might lead to cutting back federal prosecutions of state and local officials. On the other hand, the national protective role has strong support. Eliminating prosecutions would seem the constitutional equivalent of drastic reductions in federal protection of civil rights and regulation of the national economy. None of these is likely to happen.