Newt Gingrich said today that he would ask John Bolton to be his Secretary of State, and many bloggers (as well as Keith Olbermann) have responded by saying that he broke the law in doing so. I think they are wrong — indeed, pretty clearly wrong. As Mitu Gulati and I pointed out in a paper entitled “Mr. Presidential Candidate: Whom Would You Nominate?”, the relevant statute is ambiguous and, more importantly, applying the statute to a public promise like this one would violate the First Amendment.
And, as the title of our article suggests (and as we discuss at some length in the article), a presidential candidate identifying whom he would appoint is valuable to voters and should be encouraged. Indeed, in this specific case Gingrich has conveyed useful information to voters. Newt (and all other presidential candidates), please tell us more about whom you would nominate!
For what it’s worth coconspirator Eugene provided us with excellent comments on our draft and disagreed with our policy prescription, but I don’t recall him disagreeing with our legal analysis on this point (though Eugene can set me straight if I’m misremembering).
The statute, 18 U.S.C. § 599, provides in relevant part:
“Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.”
As we note in our article, there is a textual ambiguity in the statute: the trigger for the statute is “procuring support in his candidacy.” Is this trigger procuring support from the public for his candidacy or instead procuring support from the potential nominee (or perhaps the potential nominee’s associates) for his candidacy?
For those of you interest, I quote below the relevant portion of our article (sans footnotes; if you want to read it with the footnotes, click here):
We do not dwell on these arguments regarding statutory interpretation because any attempt at applying this statute to a candidate’s promises would violate the First Amendment. In Brown v. Hartlage, the United States Supreme Court confronted a state statute very similar to § 599. A candidate for county commissioner had promised to lower commissioners’ salaries if elected, and the Kentucky Court of Appeals found that this violated the following state statute:
“[W]hen a candidate offers to discharge the duties of an elective office for less than the salary fixed by law, a salary which must be paid by taxation, he offers to reduce pro tanto the amount of taxes each individual taxpayer must pay, and thus makes an offer to the voter of pecuniary gain.”
The Supreme Court reversed, unanimously. The Court treated this regulation of candidates’ speech as subject to strict scrutiny (one in a long line of cases so finding), and it invalidated this statute because it failed the first prong of a strict scrutiny inquiry: the identification of a compelling state interest. The Court noted that there was a plausible claim that a promise to accept a lower salary would reduce voters’ taxes, but it found that the state’s interest in preventing vote-buying was not implicated because “Brown did not offer some private payment or donation in exchange for voter support; Brown’s statement can only be construed as an expression of his intention to exercise public power in a manner that he believed might be acceptable to some class of citizens.” As the Court emphatically stated:
“Candidate commitments enhance the accountability of government officials to the people whom they represent, and assist the voters in predicting the effect of their vote. The fact that some voters may find their self-interest reflected in a candidate’s commitment does not place that commitment beyond the reach of the First Amendment. We have never insisted that the franchise be exercised without taint of individual benefit; indeed, our tradition of political pluralism is partly predicated on the expectation that voters will pursue their individual good through the political process, and that the summation of these individual pursuits will further the collective welfare. So long as the hoped-for personal benefit is to be achieved through the normal processes of government, and not through some private arrangement, it has always been, and remains, a reputable basis upon which to cast one’s ballot.”
In Hartlage, there was at least a plausible interest that the state could articulate (avoiding vote-buying), even though it was unpersuasive. It is difficult to see any legitimate—much less compelling—interest that the government would have in preventing corruption via prohibiting the naming of cabinet or Supreme Court nominees. Put differently, it is hard to fathom what the state’s interest would be. In Hartlage, there was a benefit to voters in the form of reduced taxes, but here there is no benefit to voters other than the likely nomination of appointees whom they would like to see in positions of power—and there is no conceivable state interest in preventing that from happening.
The government might have an interest in prohibiting concealed promises from candidates to potential nominees. Secret promises give no information to voters, so their only benefit is a private one to the candidate and/or to the nominee. That underscores the implausibility of any government interest in preventing the public naming of nominees in advance. There is no corrupting element.
A different way to come at this question is to consider why the First Amendment is treated as placing a high value on electioneering speech. One reason is because an active and full debate among candidates helps voters make more informed choices. The voters are the customers choosing among products in the marketplace of ideas. Reading the statute to prohibit the public disclosure of prospective nominees results in the implicit (and sometimes explicit) bargains between presidential candidates and prospective nominees being pushed underground. And that in turn prevents voters from being able to evaluate the competing bargains that the different candidates have struck—the opposite of what First Amendment values push toward. In effect, this occurred with Earl Warren’s appointment to the Supreme Court in 1953. Dwight Eisenhower reportedly promised Earl Warren that he would be appointed to the Court as soon as a seat opened up. The public, though, had no way of factoring this promise into their decision as to whether to vote for Eisenhower.
It is simply impossible to imagine any compelling interest for the application of § 599 to our proposal, much less a compelling interest to which application of § 599 would be narrowly tailored. And it bears noting that in the years since Hartlage, the Court has, if anything, raised the First Amendment bar for regulations on campaign speech. For example, the Court has held that a prohibition on candidates for judicial office “‘announc[ing] his or her views on disputed legal or political issues’” violates the First Amendment, despite the obvious state interest in avoiding the appearance of impartiality. The bottom line, then, is that application of § 599 to our proposal would run afoul of the First Amendment...