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.)
"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.
I will not comment on the constitutionality of the provision as I have not followed the rules regarding reading Brown.
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.
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.
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.
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.
Nick
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."
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."
18 USC 600.
Can someone be said to be bribed if the so-called benefit accrues to another? Isn't there a lack of "standing?"
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.
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.
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.
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.
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.