4. Professor Garnett writes: "Nor is it a conditional-spending statute that can be evaluated under the Dole, Pennhurst, etc. (That is, Section 666 has nothing to do with enforcing obligations against those who receive federal-program funds with notice of those obligations)." In some sense, this is correct, in that the specific prohibition applies against the city agency's employees, rather than against the city (the funding recipient) itself. But in this respect, the statute is analogous to the Hatch Act provision, upheld in Oklahoma v. CSC, restricting the political activities of certain state employees. The Court in Dole did not suggest that such "employee specific" Spending provisions are to be treated under a different constitutional test. See 483 U.S. at 207, 210 (discussing Oklahoma v. CSC). In both types of cases (i.e., Dole on the one hand; Oklahoma and Sabri on the other), the recipient government or agency has the power to eliminate the condition by refusing to accept the funds, and presumably has the power (at least in theory) to see that the condition is enforced, by policing the official capacity activities of its employees. This doesn't mean, of course, that section 666 passes muster under Dole and Oklahoma; but I'm unclear as to why it can't be "evaluated under" such precedents, or why it "looks . . . like a general police power" statute.
In my opinion Rick Garnett and Eric Muller are right that 666 is not conditional spending legislation. Indeed, prior to the Eighth Circuit's decision in Sabri, Lynn Baker and I wrote that the opinion of the Sabri district court was correct. Here's what we said: "As the Court itself has observed on multiple occasions, a conditional grant of federal funds to the states is in the nature of a contract: in exchange for federal funds, a state agrees to give something up. . . . So one must ask what is the quo that the state relinquishes for all the federal quid to which sec. 666 attaches? State permission for the federal government to impose criminal penalties on some of its agents and on private individuals who bribe such agents? That, we think, is the only plausible answer, but such permission is not something within a state's power to give. Either Congress has the power to enact a given criminal law (most likely under its Commerce authority) or it doesn't. And if it doesn't, then New York teaches that the state's consent doesn't change a thing." 78 Ind. L.J. 459, 487 n.133.
In contrast, the Hatch Act provisions at issue in Oklahoma v. CSC did condition federal funds on some particular action by the state recipient: a state that knew of an official's participation in specified partisan activities but did not suspend her would lose some portion of federal funds. As it happens, I'm one of the very few people to argue that Oklahoma was wrongly decided. See 90 Geo. L.J. 1, 51-54. But the Hatch Act was conditional spending in a way that section 666 is not. So I think that Marty's analogy fails.
5. Professor Garnett writes that "[i]f, for example, the City of Springfield receives a gang-intervention grant from the DOJ, all bribes (of more than $5,000) involving the City of Springfield -- not just bribes involving or touching upon that grant -- become federal crimes." Although it does not answer the constitutional question, it is worth noting that this is hardly the only federal statute that does not require demonstration of any direct "involving or touching upon" nexus between the money and the condition. For example, the post-Grove City amendments to title VI, title IX, and the Rehab Act, as well as RLUIPA, all impose their antidiscrimination requirements to all of the operations of a department, agency, special purpose district, or other instrumentality of a State or of a local government, or of a college, university, or other postsecondary institution, or of a public system of higher education or a local educational agency system of vocational education, or other school system, if such entity receives any federal financial assistance. (For one brief explanation about why such a nexus is constitutional, see pages 11-19 of http://www.usdoj.gov/osg/briefs/2000/0responses/2000-1488.resp.pdf.)
Marty is doubly right here: (1) many federal conditional spending statutes lack any "involving or touching upon" nexus between the money and the condition; and (2) that does not answer the constitutional question. As for that question, I'll say only that even assuming arguendo that it's permissible for Congress to condition all funds to a state department or entity on compliance by that department or entity with nondiscrimination conditions (which is the subject of the SG brief Marty cites), it does not necessarily follow that all such promiscuous conditions satisfy relatedness. Of course, because 666 is not conditional spending legislation anyway (or so it seems to me), I don't think this question is critical for Sabri.
Mitch
- ----- Original Message -----
- From: Rick Garnett
- To: [EMAIL PROTECTED]
- Sent: Thursday, October 16, 2003 3:54 AM
- Subject: Re: FW from Eric Muller: RE: Puzzling cert grant
- Dear all,
- It is true that -- under current doctrine -- a Commerce Clause statute could be drafted that would apply to much of the corrupt conduct currently targeted by Section 666. But I don't see how this fact saves Section 666, which is not a Commerce Clause statute, and could not be judicially read or re-written as one. This law says nothing -- and does not require prosecutors to prove anything -- about commerce, instrumentalities, or effects. Nor is it a conditional-spending statute that can be evaluated under the Dole, Pennhurst, etc. (That is, Section 666 has nothing to do with enforcing obligations against those who receive federal-program funds with notice of those obligations).
- Section 666 federalizes bribery when the bribe involves someone affiliated with an organization that receives federal-program money. If, for example, the City of Springfield receives a gang-intervention grant from the DOJ, all bribes (of more than $5,000) involving the City of Springfield -- not just bribes involving or touching upon that grant -- become federal crimes. The statute's premise appears to be that the (effectively unlimited) power to spend in pursuit of the General Welfare, combined with the Necessary and Proper Clause, creates what looks to me like a general police power. This is, in my view, a striking claim, and one that the Court should confront. Put differently, I think the concerns about the statute go well beyond worries that Congress should have said more clearly what it was doing.
- best,
- Rick Garnett
- Notre Dame Law School
- (London)
- At 10:47 PM 10/15/03 -0400, you wrote:
- At 09:29 PM 10/15/2003 -0500, you wrote:
- If I were going to argue that they should (which I haven't thought much
- about), I'd start by pointing out that we haven't done a very good job of
- coming up with other, substantive limits on the spending power, so
- imposing a procedural hurdle in the form of a clear invocation
- requirement would cut back on the extent to which that power can undercut
- limits on the other powers, like commerce.
- Ernie Young
- Don't we already have all the clear invocation requirement we need in the
- Spending Clause context in the Pennhurst clear statement rule, in all of
- its permutations?
- And anyway, what seems to be interesting here is that there's no concern
- that Congress is using its spending power to get around limitations on
- other powers -- here the commerce power justification might well be
- stronger than the spending power justification. So even one who agrees
- that there should be a clear-invocation requirement for open-ended powers
- that allow Congress to circumvent limitations on other powers (like the
- spending power and maybe Section 5) would need some other argument to
- justify a clear-invocation requirement for a "less powerful" power like the
- commerce power.
- Richard W. Garnett
- Notre Dame Law School
- Notre Dame, IN 46556
- (574) 631-6981
- [EMAIL PROTECTED]
- http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html
