Deal-Making (or Vote Trading) in California’s Capitol — Is It Lawful?

By Chris Micheli

We often read about the “wheeling and dealing” among elected officials that occurs in state capitols across this country, even here in California. While some observers refer to it as deal-making and lawful, others claim it is vote trading and improper or even unlawful. So, the question presented is whether there is anything improper or unlawful about either one legislator agreeing to vote for one bill on account of promises that are made to another legislator or the Governor? What is this “deal making” is evidenced by bill language and, on occasion, public statements?

In other words, does the push and pull, the compromises that are inherent in the lawmaking process, become improper or even unlawful when it occurs among elected officials? There is little doubt that an individual outside the Legislature who acts in this manner will be charged criminally.

Historically, the courts have been loath to examine the internal debates and activities of the legislative branch of government. However, with a claim of improper or possible illegal activity, would the courts examine these allegations? A concern raised by observers is that, if elected officials are precluded from negotiating over provisions of bills, what will happen to the legislative process? Will it get bogged down? Moreover, is it impermissible for legislators to secure tangible benefits for their districts? While so-called “pork barrel politics” may appear to some as unseemly, is it illegal?

Every year in the California State Capitol there are legislative “deals” between lawmakers or lawmakers and the Governor. A recent example includes SB 1, SB 132, SB 496, and ACA 5, known collectively as the “transportation funding deal” in early 2017. Since the passage of these measures, there has been private and public debate in and around the Capitol whether such a deal violated any federal or state laws or ethics rules.

The claim of critics is that the governor and legislative leaders promised a billion dollars of state spending for specific local projects in the districts of wavering lawmakers in exchange for their voting for the gas tax increase. One legislator was alleged to have gotten a bill enacting a policy change concerning liability in construction lawsuits. The question raised was whether these negotiations and “side deals” on the transportation funding package amounted to a “quid pro quo” exchange? There were similar claims made during the negotiations concerning the cap-and-trade bills in July.

Let’s take a quick look at federal and state laws that may be applicable in determining an answer to these allegations. First, it does not appear that either of the major federal statutes apply in this case:

The Hobbs Act is found at 18 U.S.C. Section 1951. According to the U.S. Attorney’s Office, “The Hobbs Act (18 U.S.C. § 1951) prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce. Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy statute at 18 U.S.C. § 371. Although the Hobbs Act was enacted as a statute to combat racketeering in labor-management disputes, the statute is frequently used in connection with cases involving public corruption, commercial disputes, violent criminals and street gangs, and corruption directed at members of labor unions.” There is no allegation that there was actual or attempted robbery or extortion in these legislative negotiations.

The Honest Services Fraud Act is found at 18 U.S.C. Section 1346. The honest services fraud is a crime defined in the federal mail and wire fraud statute which states: “For the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services.” According to Wikpedia, “the statute has been applied by federal prosecutors in cases of public corruption, as well as in cases in which private individuals breached a fiduciary duty to another. In the former, the courts have been divided on the question of whether a state law violation is necessary for honest services fraud to have occurred. The U.S. Supreme Court has interpreted the statute to only cover “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who ha[s] not been deceived”. There does not appear to be any allegation of bribes or kickbacks from a third party being in play in legislative negotiations.

In turning to California law, the state Constitution in Article IV, Section 15 provides: “A person who seeks to influence the vote or action of a member of the Legislature in the member’s legislative capacity by bribery, promise of reward, intimidation, or other dishonest means, or a member of the Legislature so influenced, is guilty of a felony.

The California Constitution specifies “a person” who seeks to influence the vote or action of a legislator. This constitutional provision uses member of the Legislature is three places. Even the legislator who is “so influenced” is guilty of a crime. However, this section appears to be directed at those who are not members of the Legislature and who try to influence legislator in his or her official capacity. If only non-legislators are affected by this provision, then neither the governor’s nor other legislators’ efforts to “influence” another legislator’s vote is covered.

In addition, California Constitution Article VII, Section 8(b) contains the following sentence: The privilege of free suffrage shall be supported by laws regulating elections and prohibiting, under adequate penalties, all undue influence thereon from power, bribery, tumult, or other improper practice.” This provision raises questions of what constitutes “undue influence,” and whether legislative negotiations amount to “power, bribery, or other improper practice”?

In turning to California statutes, bribery is generally defined as an effort to influence a public official in conducting their official work through the use of money or gifts. There are several, specific California Penal Code sections that deal with public officers, employees, and legislative officers.

Penal Code Section 7 provides the following definition of bribery: The word “bribe” signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity.

Note that the law does not require that the bribe is actually made or received to constitute a crime. However, do these legislative negotiations amount to “bribery”? Have the legislators been given something of value? Did the governor or legislative leaders promise something with a “corrupt intent to influence” other legislators? Those are high thresholds and do not appear to be in play with these legislative negotiations.

Also of interest are Penal Code Sections 85 and 86 which deal specifically with bribery by or of legislators and other elected officials. Penal Code Section 85 makes it a felony for any person to give or offer to give a legislator a bribe with a corrupt intent to influence the legislator’s vote in an official matter.

Penal Code Section 85 provides: “Every person who gives or offers to give a bribe to any Member of the Legislature, any member of the legislative body of a city, county, city and county, school district, or other special district, or to another person for the member, or attempts by menace, deceit, suppression of truth, or any corrupt means, to influence a member in giving or withholding his or her vote, or in not attending the house or any committee of which he or she is a member, is punishable by imprisonment in the state prison for two, three or four years.”

Penal Code Section 85 also prohibits someone from using corrupt means like menace and deceit to coerce a legislator to give or withhold his vote on an issue. This includes a prohibition against vote trading. Here, again, this section is premised upon giving a bribe to a legislator. It seems highly unlikely that providing funding for a specific legislative district project, for example, would constitute a bribe. Bribery is premised upon the elected official receiving a personal financial benefit.

However, this section has been interpreted to prohibit vote trading. Note that the state’s criminal laws not only outlaw bribery and vote-trading, but also “any attempt by menace, deceit, suppression of truth, or any corrupt means, to influence a member in giving or withholding his or her vote.” This appears to be a broad prohibition.

In addition, using threats or force to compel a public officer to perform an official act could also be prosecuted under Penal Code Section 518, which is California’s extortion law. This section provides: “Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.” Voting is an official act by a legislator. But is legislative negotiating inducing a vote by wrongful use of fear or under color of an official right?

Similarly, Penal Code Section 86 deals with bribes by legislators and makes it a felony for a legislator to ask, receive or agree to receive something of value with a corrupt intent to influence the legislator’s vote in an official matter. Section 86 also prohibits a legislator from conditioning his or her vote on that of another legislator.

Penal Code Section 86 provides: “Every Member of either house of the Legislature, or any member of the legislative body of a city, county, city and county, school district, or other special district, who asks, receives, or agrees to receive, any bribe, upon any understanding that his or her official vote, opinion, judgment, or action shall be influenced thereby, or shall give, in any particular manner, or upon any particular side of any question or matter upon which he or she may be required to act in his or her official capacity, or gives, or offers or promises to give, any official vote in consideration that another Member of the Legislature, or another member of the legislative body of a city, county, city and county, school district, or other special district shall give this vote either upon the same or another question, is punishable by imprisonment in the state prison for two, three, or four years and, in cases in which no bribe has been actually received, by a restitution fine of not less than four thousand dollars ($4,000) or not more than twenty thousand dollars ($20,000) or, in cases in which a bribe was actually received, by a restitution fine of at least the actual amount of the bribe received or four thousand dollars ($4,000), whichever is greater, or any larger amount of not more than double the amount of any bribe received or twenty thousand dollars ($20,000), whichever is greater.

Again, it appears this Penal Code section deals with bribes and the receipt of personal financial benefit by a legislator. Would the result of these legislative negotiations amount to “bribery”? However, there is a clause in this section that “prohibits a legislator from conditioning his or her vote on that of another legislator.” This implies vote trading with another legislator. In other words, “if you vote for my bill, then I will vote for your bill.” But is this what actually occurred in the transportation funding bill?

Some have raised the point that vote trading occurred because some legislators conditioned their vote for the gas tax increase on the passage of other bills as part of the “deal.” On the other hand, some have argued that, with all of the spending contained in a companion bill, there was not vote trading. But what about a companion bill that is unrelated to the main bill? For example, what if a Labor Code change was part of the transportation funding deal?

There was an interesting U.S. Court of Appeals for the Ninth Circuit decision that may shed some insight on this question. The case was Porter v. Bowen and the federal appellate court determined that the First Amendment barred the State of California from closing down the 2000 Nader-Gore vote trading websites. The court ruled that the exchange of political rather than personal benefits rendered the activity protected by the First Amendment, even if the vote exchanges were somehow enforceable. Part of the court’s opinion follows:

Whatever the wisdom of using vote-swapping agreements to communicate these positions, such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties’ willingness to exchange votes for money (or some other form of private profit). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned “without trenching on any right of association protected by the First Amendment.” Vote swapping, however, is more akin to the candidate’s pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate’s pledge, vote swapping involves a “promise to confer some ultimate benefit on the voter, qua…citizen[ ] or member of the general public”–i.e., another person’s agreement to vote for a particular candidate. Id. at 58-59. And unlike vote buying, vote swapping is not an “illegal exchange for private profit” since the only benefit a vote swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass. Id. at 55 (emphasis added); cf. Marc Johnandazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L.Q. 143, 221 (2004) (“There can be no…serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment.”).

Both the websites’ vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters’ tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

Without money changing hands (the traditional definition of bribery), does the First Amendment protect legislative negotiations? In other words, following this Ninth Circuit opinion, do these “side deals” amount to “political benefits,” seemingly protected by the First Amendment, rather than “personal benefits” because they do not accrue to the legislator? Aren’t these legislators looking out for what is best for their districts and constituents?

Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be reached at 916-448-3075.

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