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Why Presidential Candidates Can't Run With a Cabinet Already Lined Up:

Lawprof Michael Froomkin (Discourse.Net) had a great post last year on this subject; I missed it when it first went up, but it's still interesting now:

As my friend John Berryhill points out . . .:

[S]hadow cabinets have not been used in the United States because [a candidate who promises, as part of his election campaign, to appoint someone to the Cabinet] would face up to two years in jail under 18 USC ยง 599:

"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; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both."

Incidentally, I'm not sure that this provision is constutitional — see Brown v. Hartlage (1982). (Please don't argue in the Comments that it's constitutional or unconstitutional without having read Brown; it's both the most directly on-point precedent, and it makes important policy arguments that even people who don't care much about precedent should deal with.)

Richard Bellamy (mail):
The distinction, as I see it being drawn, is between general political promises and "Bribery."

"I will give everyone $100 if I'm elected" is a bribe.

"I will lower everyone's taxes by an average of $100 if I'm elected" is a political promise.

Now, the problem is "I will name Colin Powell Secretary of State" is a political promise to ME, but it is, at least arguably, a bribe to Mr. Powell, to keep him from voting for Mr. Gore.

There is probably a place where 18 USC 599 is constitutional -- promising an ambasadorship or FEMA directorship and receiving a huge political contribution in return, for example -- but I would think that in order to get over the "free speech" hurdle, it would have to have been a secret to begin with.
11.7.2005 3:39pm
Mattattack:
Generally this is a politically moot issue. There are a lot more people out there who would like to get an appointment, and who would like to help you get elected to get that appointment, then there are positions to appoint them to. Therefore there is more political benefit to letting the larger pool think they might have a shot.

I will not comment on the constitutionality of the provision as I have not followed the rules regarding reading Brown.
11.7.2005 3:58pm
Josh Jasper (mail):
Intersting Irony with the name 'Brown' and political appointments given as gifts to campaign workers.
11.7.2005 4:02pm
Larry Faria (mail):
The decision seems to give candidates quite a bit of leeway during the course of campaigning. A candidate promising publicly to appoint a particular individual to his cabinet or Scotus, or an expert in a given field to a related department, seems to be protected by the ruling. The federal statute looks inapplicable to campaigning, and promises made in private would likely be covered by other statutes. So what's it's purpose?
11.7.2005 4:03pm
Greedy Clerk (mail):
I think this statute can be reasonably read only to apply to a promise to a specific person for a specific job in exchange for that specific person's vote. I would think the bolded part would require a real fit of causation so that there would be no causation where a person who already supported the presidential candidate was the person to whom the appointment was promised. I.e., had W promised to appoint Powell as Secretary of State in October 2000, well after Powell had publicly expressed his support to W, there would be no causation.

Although there are other perhaps reasonable interpretations of the statute, I think it likely a court would adopt my interpretation or another close one so as to avoid the weighty constitutional questions posed by Froomkin. Not just the First Amendment conerns identified by the Court (which was unanimous in result) in Brown, but also other important questions: Separation of Powers, Political Questions, perhaps adding in requirements to run for President which are not in Article II and the amendments thereto. There are just too many hurdles for a Court to have to analyze for it to adopt the broad interpretation of the statute Froomkin assumes.
11.7.2005 4:04pm
DK:
You can also bribe someone not to get his/her vote, but to get her/her political machine on your side, as John Quincy Adams did with Henry Clay. Does anyone know any recent examples of that, other than the vice presidency? Bush appointing Powell doesn't count, since Powell didn't have a political machine, only a dignified reputation.
11.7.2005 5:02pm
TJ (mail):
It seems that Greedy Clerk's point should be all she wrote on this topic. Why isn't it?
11.7.2005 5:10pm
VC Regular (mail):
Because although Greedy Clerk's points are important, I think the issue is more nuanced than Greedy makes it out to be. The statute isn't, in my opinion, narrowly tailored to achieve the compelling government interest as it covers the promise by a candidate to the public to appoint a certain cabinet member, regardless of whether the causation Greedy cites to exists. Second, it is unclear to me what the compelling government interest is in this case? All cabinet appointments must be confirmed by the Senate, so the candidate can, at best, promise a nomination. Besides, what interest does the government have in restricting a political candidate's ability to promise the voters a certain cabinet pick? Isn't that important for voters to know? Cabinet picks exercise a lot of power within an administration. A candidate should be free to make up for certain weaknesses by promising the appointment of someone in a given area to compensate.

I don't accept that the Constitution permits the federal government's limitation of a candidate's ability to tell the voters how he or she would exercise his or her constitutional powers. And I think Brown agrees with my conclusion.
11.7.2005 5:36pm
Greedy Clerk (mail):
VC Regular, you missed my point entirely. Reread what I wrote. I am not saying that the statute is narrowly tailored and meets a compelling interest and would otherwise satisfy the first amendment. I am saying that it can be read very narrowly to avoid the constitutional issues (beyond just the first amendment issue which to me strikes me as the least interesting of the other issues I raised). If read in the manner I put forward (which may not be the most reasonable manner, but is nevertheless reasonable), it would clearly be constitutional. Moreover, a court would likely adopt my reading (or one similar to it), because it would avoid all the messy constitutional issues -- i.e. such a court would be following the well-recognized and important canon of statutory construction of interpreting a statute in order to avoid constitutional questions.

As another poster said, this is all she wrote on this topic. I have no doubt that if a Presidential candidate said, "if elected I will appoint Bill Clinton Secretary of the Interior", that candidate would not be prosecuted under this law, and if the candidate was, the indictment would be dismissed immediately. The dismisal would be affirmed by the Court of Appeals, and the Supreme Court would deny cert. That's all she wrote. But thanks for coming out, I enjoyed playing. Maybe you'll get me next time.
11.7.2005 5:47pm
Not VC Regular:
Greedy has a strong point, but to read the statute that narrowly would be to give it almost no effect. As Mattattack notes, there aren't that many appointments that any elected official can give out.

If Hillary Clinton said tomorrow, "if elected President, I will appoint Oliver Stone as chief of Homeland Security," I think it's a bit odd to suppose that Congress's concern in adopting that statute was the effect of Hillary's statement on Oliver Stone's--and only Oliver Stone's--vote. I think by "procuring support," the statute probably refers to the other benefits to her candidacy that would come with the alliance.

Construing the statute more broadly would indeed raise a lot of constitutional issues, but to construe it as narrowly as Greedy Clerk urges would--I think--water it down to the point of ineffectiveness.

But it's entirely possible that I underestimate the strength of the constitutional avoidance principle.
11.7.2005 6:17pm
NickM (mail) (www):
Brown would appear to apply to all publicly-made campaign promises. I am less certain than other posters that an indictment would be promptly dismissed by the trial court (some trial judges are notorious for not granting motions to dismiss), but I am confident that an appellate court would quickly order any indictment dismissed that survived a motion in the trial court.

Nick
11.7.2005 6:19pm
SMoss (mail) (www):
In response to Not VC Regular:

It's not at all odd that Congress would have enacted the statute in an effort to get at non-public promises of employment in exchange for electoral support. Indeed, the statute prohibits a candidate from using her influence to secure private employment for an individual. And it's hard to imagine a candidate securing many votes by publicly declaring that, if elected, she would install (or use her influence to try and install) Mr. Doe as CEO of America Online. (In fact, a candidate who made such a promise would probably be forced out of the race, notwithstanding the statute.) I doubt Congress was concerned about the impact on the public of such statements. Thus, it seems that Greedy Clerk is correct: "this statute can be reasonably read only to apply to a promise to a specific person for a specific job in exchange for that specific person's vote."
11.7.2005 6:40pm
Jason Jonas (mail):
On the contrary, I've often wondered if there should be a constitutional custom/ practice/ understanding -- possibly even an amendment -- to say that if, in advance of Election Day, a Presidential candidate named a particular individual as his/her intended nominee for a particular Cabinet office, the Senate should not [have power to] block that appointment. IOW, the Senate's veto should function only as a proxy for the electorate (represented in the Electoral College).

As it stands, a sitting president already has an advantage here: without Bush saying a word, everyone could guess before the 2004 election that Condi, Powell, Rumsfeld et al would hold some kind of office in a second Second Bush Admin. Whereas the opposition party would need to name, in words, the "talent" that would be in Cabinet to "hold the hand of" a challenger who may very well lack any national executive experience (as, IMHO, the presence on the ticket of LBJ and Lloyd Bentsen as VP nominees helped to do for JFK and Dukakis).

Re bribery: a number of factors distinguish what we intuitively recognise and condemn as "corrupt", from ordinary pluralist democratic logrolling. [1] Promises are made publicly; bribes are offered in secret. (Although if bribes are being offered openly, that political culture may be really beyond hope!) [2] To be paid the bribe, it is necessary that you personally (appear to have) voted for the candidate who offered it. Victorious candidates don't go paying for free beer for people they know didn't support them. [3] To be paid a bribe, it is not sufficient that the candidate actually wins. A defeated candidate usually pays voters before polls close.

Thus, those factors combine to make a clear gap between (a) Candidate X saying publicly, "You should vote for me, because if I don't get elected I can't get the Free Beer For ALL Citizens Act passed next year, can I?" (b) Candidate Y saying in secret "Vote for me, and whether I get elected or not, I'll give you, personally, a six-pack of beer, right away. -- But only if you vote for me."
11.7.2005 9:19pm
Kevin St. John (mail):
If Congress wanted to have made statute an anti-bribery statute, it could have done so quite easily. In fact, the very next section of Title 18 expressly does just that:


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.


18 USC 600.
11.7.2005 11:50pm
TJ (mail):
It does seem as though the text of the statute 18 USC 599 is at odds with Greedy (and my) reading... at least it sort of looks that way after re-reading.

Can someone be said to be bribed if the so-called benefit accrues to another? Isn't there a lack of "standing?"
11.7.2005 11:55pm
Anthony (mail):
The President has approximately 7,000 direct appointments at his/her disposal. That's more than the number of gay black Republicans in Florida who gave the election to Bush.

However, except in unusual cases, a President might not want to offer government jobs to people who'd consider voting for his general-election opponent and are thus bribeable.
11.8.2005 12:31am
Jeroen Wenting (mail):
"However, except in unusual cases, a President might not want to offer government jobs to people who'd consider voting for his general-election opponent and are thus bribeable."

Correct. Someone who was bribed once can be bribed again and more easily than the first time, he's inherently untrustworthy.

Therefore the whole issue is moot as no right-thinking person would seek to bribe someone to support him in exchange for a position of power.
Of course there are many people who are stupid enough to do it, but they deserve what they get when their bought support abandons them.
In the end they'd end up with no power or support infrastructure and thus unable to govern.
11.8.2005 7:51am
BruceM (mail) (www):
Bush saying "if i'm elected I'll appoint colin powell secy of state" doesn't make a bribe to anyone. Colin Powell's appointment is not in any way contingent upon whomever he votes for. Colin is free to vote for Gore and still be appointed if Bush wins. Making a vote for your opponent seemingly against voters' self-interest is now a bribe, it's the core reality of politics.
11.8.2005 11:07am
VC Regular (mail):
Not VC Regular and Anthony, thanks for making the perfect case that Greedy Clerk's reading of the statute is unreasonable. Reading the statute so narrowly as to prohibit only the direct exchange of jobs for votes would render the statute ineffective. There are 40 million votes each for the two major party candidates, and Greedy is suggesting that a judge would find the statute only applies to promises of appointments in exchange for a handful (in any case not more than 7000) votes.

I have my (currently uneducated) opinion that the statute is unconstitutional on its face. But if a clerk suggested to me that the statute can be "reasonably read to apply only to the quid pro quo of one vote for one appointment" I'd laugh him or her back to the first year of law school.
11.8.2005 11:26am
Greedy Clerk (mail):
VC Regular -- scoreboard.

As for this comment, Can someone be said to be bribed if the so-called benefit accrues to another? Isn't there a lack of "standing?"

The only entity that would need standing is the government who prosecutes under the statute. THe government has standing to prosecute its criminal laws. End of story.

11.8.2005 12:59pm
TJ (mail):
Greedy Clerk,

I'm not involved with the law, except in the sense that I try to obey it ;) I meant "standing" to "stand" for something else that I don't know the name for... I meant is it really bribing someone if persons other than the bribee get the benefit?

However, I guess rule 600 explicitly addresses bribery, as Kevin St. John notes above... does this not make the narrow reading of 599 unreasonable?

By the way Greedy, I'm just interested. To me it really seems that congress couldn't possibly have meant to prohibit campaigning politicians from naming hypothetical cabinet members.
11.8.2005 1:41pm
David M. Nieporent (www):
I'm not involved with the law, except in the sense that I try to obey it ;) I meant "standing" to "stand" for something else that I don't know the name for... I meant is it really bribing someone if persons other than the bribee get the benefit?
Sure. "Vote for me and I'll give you $1,000" or "Vote for me and I'll give your mother $1,000." Either one's a bribe.
11.8.2005 11:05pm
TJ (mail):
David,

Well, yeah.

I'm having trouble articulating my questions, so I'll stop for now. An interesting topic, and thanks to the VC for linking to it.
11.9.2005 12:29am