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Anti-corruption act would ban innocuous gifts, wreak havoc on local governments, critics warn

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Steven Nelson
Associate Editor

The Clean Up Government Act, a bipartisan attempt to toughen anti-corruption laws that the Supreme Court has deemed insufficiently vague, is both unnecessary and possibly harmful, critics contend.

Attorney Timothy O’Toole, a board member of the National Association of Criminal Defense Lawyers, told The Daily Caller that he is particularly concerned by changes that would introduce “unnecessary, way too broad” conflict of interest regulations and an expanded gift-giving ban that is “a lot more murky.”

“It’s not clear to me that any of these laws need to be changed,” O’Toole told TheDC. “They seem to be working pretty well as-is.”

Of particular concern to O’Toole is the legislative proposal’s conflict-of-interest provisions that would incorporate violations of state and local government disclosure rules. Many officials outside the federal government work part-time and have separate private-sector employment, creating potential conflicts in situations that full-time public servants don’t encounter.

He testified before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security in July to voice his concerns. Some of the changes made since then are for the better, O’Toole, said, but he remains concerned.

“People who have jobs in the private sector, but also government positions, at least in theory have lots of conflicts of interest at any given time,” he warned. “You’ve incorporated hundreds, if not thousands, of disclosure provisions by making a federal crime out of a violation of a state or local disclosure law, and that could have all sorts of unintended consequences.”

A part-time state legislator who also owns a car dealership, he said, could find himself in violation of the new federal law by voting on a highway bill without adequately disclosing his business connections. “It might have been a violation of some sort of technical disclosure provision not to talk about that conflict of interest, but that can’t be what people would think would be a federal crime,” said O’Toole.

Heritage Foundation visiting legal fellow Joe Luppino-Esposito also criticized the legislation. In a blog post on the think tank’s website, he wrote that the bill was an example of Congress “extending its streak of overcriminalization and overfederalization in the name of ‘good governance.’”

The Clean Up Government Act would also change gift-giving regulations. It is already illegal to give or accept gifts for or because of any official act.  The bill would also ban gifts given to public officials simply because of their position.

“There are lots of situations where gifts [are] given for or because of an official position — everybody would agree that they were okay. And yet what this law does is criminalize that. And it’s not clear to me why we needed that,” said O’Toole.

Hypothetically, giving an elected official a commemorative fire jacket could become a federal crime because it might exceed the one thousand dollar gift-value limit.

Accepting gifts, even without evidence of a quid-pro-quo arrangement, would be illegal, noted Luppino-Esposito. According to a House Judiciary Committee aide, the law would have no effect on gift-giving among friends.

“I’m not sure there were any cases that should have been prosecuted, but weren’t, in order to justify all this,” O’Toole said. Gifts to public officials and staffers are currently regulated by rules that vary among different legislative bodies and executive agencies.

“The problem is that Congress continues to write vague and overbroad criminal laws that can entrap citizens who are unaware that their conduct is criminal,” Luppino-Esposito told TheDC.

O’Toole and members of The Heritage Foundation’s overcriminalization division hosted an off-the-record forum for Capitol Hill staffers in November, suggestively titled, “Have You Committed a Felony Today?” A videotaped presentation was followed by a question and answer period that was not recorded. Attendees were tight-lipped, and nobody fessed up to potentially felonious conduct, Luppino-Esposito said.

Wisconsin Republican Rep. Jim Sensenbrenner and Illinois Democratic Rep. Mike Quigley are the bill’s co-sponsors. A wide variety of pro-transparency groups, including Citizens for Responsibility and Ethics in Washington, Public Citizen and U.S. PIRG have lent their support.

“Would some of our members make more money because of vague criminal law?  Sure,” acknowledged O’Toole.  His association of defense attorneys, O’Toole said, is mainly interested in a ”more just and more fair justice system.”

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