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Keeping the WSJ Honest on Honest Services

By Jeremy Miller

Not out of character, an editorial in yesterday’s Wall Street Journal (WSJ) attacked one of the most worthwhile bipartisan initiatives making its way through Congress: legislation providing critical amendments to bolster federal anti-corruption laws.

Followers of CREW may know that last year’s Supreme Court decision in Skilling v. United States eviscerated the honest services fraud statute (18 U.S.C. § 1346).  For decades prosecutors  relied on this statute to target public officials who engaged in malfeasance, such as undisclosed self-dealing, that is not as simple as a direct quid pro quo or a freezer full of money.  Unfortunately, the Skilling decision effectively struck down as unconstitutionally vague the honest services language and consequently, left a gaping hole in the Department of Justice’s (DOJ) ability to address a vast swath of public corruption. 

Directly contrary to the reservations expressed by the WSJ editorial board, the legislation in both houses of Congress is constitutionally sound and heeds the Supreme Court’s call for greater clarity and specificity.  The editorial brings to mind the constant refrain heard during last year’s election campaign: read the bill!  The WSJ’s concern about overcriminalization and prosecutorial abuse might have applied to prior versions of the honest services statute, but the current proposal borrows language from 18 U.S.C. § 208, a well-established federal conflict-of-interest statute that already applies to the executive branch and, more importantly, has been upheld as constitutionally sound by the Supreme Court. Further, under the proposed statute no public officials may be prosecuted unless they knowingly conceal, cover up, or fail to disclose material information they are obliged to reveal by law or regulation.  As crafted, this bill removes the risk that a public official will be convicted for unwitting conflicts of interest or mistakes.

Public corruption should not be a partisan issue, and the authorship of the legislation in both the House and Senate is a strong reflection of this principle.  Strong conservatives Senator John Cornyn (R-TX) and Rep. James Sensenbrenner (R-WI) have joined with Senator Patrick Leahy (D-VT) and Rep. Mike Quigley (D-IL) to promote this commonsense approach.  Senator Mark Kirk (R-IL) is also an enthusiastic supporter noting, "Corruption crimes by elected officials are all too familiar in Illinois, most recently with the conviction of Governor Blagojevich." As Sen. Kirk said, this legislation will help “federal prosecutors restore integrity to our political system."

CREW continues to enthusiastically support this critical legislation fix and applauds Senators Leahy and Cornyn, and Reps. Sensenbrenner and Quigley for their leadership on this critically important issue.