Thursday, June 3, 2010

Three Questions Regarding White House Job Offers to Political Candidates

The Internet is buzzing with reports that President Obama, to some extent, tried to secure employment for at least two Democratic congressional candidates. Last month, Representative Joe Sestak of Pennsylvania said the White House offered him a position to coax him out of a race against Arlen Specter. The White House confirmed that statement. Now, Andrew Romanoff says that the White House offered him three different positions in order to persuade him not to run against incumbent Senator Michael Bennett from Colorado.

The story has become a leading news item, but most of the reporting fails to address three important questions. First: is this conduct illegal? Second: is it unethical? Third: is this common or traditional behavior among presidents?

I suspect that the conduct is not illegal. Whether it is unethical is a more philosophical point, but people should at least address it, rather than implying that the actions are inherently wrong. Finally, I also suspect that for a large part of U.S. history, presidents have dangled potential employment and other incentives under similar circumstances.

According to Obama's critics offering jobs to political candidates makes him a "Washington insider," which betrays his rhetoric of "change." Running as a Washington outsider is a popular strategy among political candidates -- especially those candidates desperately seeking a job in Washington. But, if people actually believe that the Washington insider label has any substantive value beyond its use as a campaign slogan, they are too gullible to engage in political analysis.


Harriet said...

Do you think there's anything relevant in this code?

Crimes and Criminal Procedure - 18 USC Section 600

Sec. 600. Promise of employment or other benefit for political activity

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.

Harriet said...

Or this.

Crimes and Criminal Procedure - 18 USC Section 595

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.

liberal dissent said...

I think the right has been even harsher, calling it "bribery," which is incredibly hypocritical since they've been doing the same thing for years.

Harriet: the thing you cite is a little vague, and would depend on the position offered. I would think an unpaid advisory position with the White House would not constitute employment "provided for or made possible in whole or in part by any Act of Congress." The USAID position mentioned in the story linked probably would, but in that case it's a bit ambiguous whether the activity constituted directly or indirectly promising that employment, the White House appears to have been pretty careful in their phrasing.

Harriet said...

Thanks for your reply - I was curious to get a local law professor's take.

I have been trying to figure out from a purely neutral standpoint if these statues apply. I thought the Romanoff jobs were paid positions. I do agree that the White House used careful phrasing, although I wonder how it would hold up in court.

Law Professor Ann Althouse seems to think the statues apply. Perhaps you'd like to respond.

Darren Lenard Hutchinson said...

Harriet, I agree with LD that these statutes are very vague. I would have to examine caselaw on this subject, but I'm still inclined to believe that the behavior is not a crime.

As for Althouse, I read her post, and I fundamentally disagree with her on one point: the notion that if other presidents have done this, then it cannot be a crime. Althouse ignores a major theme of constitutional law -- that the legality of presidential behavior is often determined by practice and tradition. See Youngstown Sheet. Also, if this behavior is common, yet unprosecuted, perhaps it is because prosecutors do not believe it is illegal.

Josh Dowlut said...

"uses his official authority for the purpose of interfering with, or affecting"

That seems to mean even if it was an unpaid position it violates the law of it was for the purpose of affecting the outcome of a congressional race.

As to Darren's presidential tradition comment, you'd need to show a pattern of multiple presidents doing this to make it a tradition. Does anyone here know of any?

As to the ethics, it undermines the electoral process and erodes the primary avenue for peaceful change at a time much of the public is very upset with incumbents in general. It violates the separation of powers created to prevent the abuse of power. In our system power comes from the bottom up. These are the actions of a top down system.

Darren Lenard Hutchinson said...


As for your first point, this is vague and also confusing. What is "official authority"? The president is the Executive but he (and one day she) is the "leader" of his political party. Presidents do many things for candidates -- campaign, raise money, etc. Under the broad arguments that people have advanced, these activities use "official authority" to "affect" an electionn. Hiring is probably more "official" than campaigning, but this seems to me only a difference in degree (not kind). Presidential endorsements, fundraising, and campaigning, etc., are effective precisely because of the president's official status.

Your final argument -- I really cannot accept. What "separation of powers" violation has Obama committed? None really.

How does this undermine the electoral process? If they were offering jobs to Republican nominees, then I would think that presents a bigger problem. Trying to eliminate primary contests within one party does not strike me as harming the electoral process. Also note, in both instances, the candidates stayed in the race. Finally, the "top down" argument fails because the voters elected (or will elect) the candidate.

I have criticized Obama's intervention in political races before (Paterson), and I accept your criticism too. At least you were specific -- when others were not. I just do not view this as an ethical crisis. Even if I do not favor the behavior, this does not make it criminal, unethical or destructive of politics.

Josh Dowlut said...

"only a difference in degree (not kind)"

Campaigning support is participating in the electoral process. Influencing a strong candidate who threatens your cronies to take themselves off the ballot is subverting/circumventing the electoral process.

The primary election is just as important as the general. When it comes to upsetting incumbents perhaps more so because many people are reluctant to cross party lines but will vote for the "new guy" in the primary. Many of the recent incumbent upsets have been in the primary.

It exerts influence of the executive branch on the makeup of the legislative branch. While ultimately it is up to the voters, it takes a big name and a million+ dollars to be a senate contender so using presidential power to takeout front runners effectively eliminates those with a legitimate chance. Granted it is not absolute or perhaps even successful top-down power, but it is an attempt at exerting top-down power. There should not be absolution because it failed, and maybe even spectacularly backfired. The people made Sestak and Romanoff front runners. The office of the most powerful man in the world wanted them out of the race and offered appointments to try and make it happen.

Darren Lenard Hutchinson said...

Josh said: "who threatens your cronies to take themselves off the ballot" -- Colorful prose, but that's not a legal standard for a crime.

The reason why Obama promising a job to a Republican would have greater ethical and legal problems is that it would eliminate one party from the competition altogether. This does not demean the primaries. But you have to admit, that one candidate in a general election is even more threatening to democracy.

Finally, you keep mentioning that Obama tried to take out "frontrunners." I am not even sure that this is the case in both instances. Regardless, the law and ethics cannot turn on whether the person is leading the election according to polls. That would be an odd standard -- "you cannot influence the most popular candidate, but you can influence all others."

Josh Dowlut said...

"Influencing a strong candidate who threatens your cronies to take themselves off the ballot" within the language of "uses his official authority for the purpose of interfering with, or affecting" looks pretty criminal. The simple question: does attempting to persuade a candidate to quit an election interfere with that election?

The front runner status is not an element of the crime, it is an element of how it functions to subvert the political process. It would be a crime to use power and influence to attempt to persuade any candidate to quit an election.

Conceding that one party rule is worse than two party rule (although perhaps not by much), this race is not about D's v R's. It's about incumbents v non-incumbents.

And for a little more conspiracy theory........anyone have any thoughts or opinions on why Doug Duncan dropped out of the governor's race against O'Malley at a time he was gathering momentum and closing the gap? That's the most recent and questionable one I can think of.

Josh Dowlut said...

Given a second read of 18 USC Section 595, "attempt" or equivalent language is not in there. Maybe it's only a crime if it's successful? If the candidate didn't drop out it does not equal influence, only attempted influence?

Darren Lenard Hutchinson said...

Josh: I had a similar thought regarding "attempt." Also, I have not seen many criminal law persons talking about this. I suspect they believe it is a dead issue.

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