Bench Memos

Law & the Courts

Mobbing Susan Collins

Having evidently failed to persuade Senator Collins to vote against the Kavanaugh nomination, left-wing activists have now resorted to bullying her and to concocting a campaign-contribution scheme that is of dubious legality under federal anti-bribery law.

Per this Wall Street Journal house editorial, Collins reports that her state offices have been receiving “out-of-state voicemails” that are “incredibly offensive,” including one caller who “threatened to rape one of [her] young female staffers.” In another silly stunt, anti-Kavanaugh activists have been sending Collins coat hangers, which she in turn has had the good sense to send to a local thrift shop that needs them.

In the campaign-contribution scheme, a group called Maine People’s Alliance is leading an effort to solicit funds from donors to pressure Collins to vote against the Kavanaugh nomination. Under the scheme, funds pledged will go to Collins’s opponent in her 2020 election campaign if she votes for Kavanaugh; if she votes against him, the pledges will be released. As of two days ago, the effort had raised more than one million dollars.

As the Washington Post reports, Adav Noti of the Campaign Legal Center “told the Post he thought the listing was illegal, noting that bribery is a federal crime.” The Campaign Legal Center, I’ll note, would not be mistaken by anyone for a conservative group: its board chair is Norman Ornstein, and it holds liberal positions on campaign finance and other issues.

Under federal law (18 U.S.C. § 201), no one may “directly or indirectly, corruptly give[], offer[] or promise[] anything of value to any public official … with intent … to influence any official act.” The argument that the Maine People’s Alliance scheme violates this anti-bribery law is straightforward: Maine People’s Alliance is promising Senator Collins that it will withhold a massive amount of money from her re-election opponent if she votes against Kavanaugh.

Oddly, law professor Rick Hasen, who has elsewhere mischaracterized textualism as mere “word games” (see point 2 here), breezily dismisses this argument as “wrong” without seriously engaging it. Even worse, ignoring Adav Noti entirely, he pretends that it’s just a cynical argument by conservatives.

By saying that the bribery argument is straightforward, I am certainly not contending that it is open and shut. Although it’s clear, for example, that a promise of campaign funds is a thing “of value” under the statute, it’s conceivable that a promise to withhold funds from a public official’s opponent wouldn’t qualify. It also might be that the adverb “corruptly” or the principle of lenity (construing criminal statutes leniently) would lead to a different result. And under Citizens United it’s even possible that Maine People’s Alliance, despite being a corporate entity (it’s a nonprofit corporation), has a First Amendment right to engage in its scheme.

In any event, unless I’m badly misreading things, those who expect Collins to be intimidated by these various stunts seem to have mistaken whom they’re dealing with.

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