I haven’t studied Texas law or the indictment closely enough yet (read Ross Ramsey’s column for the basics), but Eugene Volokh, who is very careful with these things, makes a good case that this indictment will not fly because the law potentially violates the First Amendment (by being unconstitutionally vague, unconstitutionally overbroad, or both).
Perry joins the list of other politicians prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get convicted by juries; some don’t. Some have their prosecutions overturned on appeal; some don’t.
The common thread here is the criminalization of politics. As I wrote about DeLay:
Some liberals are no doubt disappointed to hear that a Texas appellate court today, on a 2-1 vote, reversed the conviction of former U.S. House Majority Leader Tom DeLay. They shouldn’t be. There were good reasons to think that DeLay’s prosecution in Texas for violations of state campaign finance law, like the federal prosecutions of former presidential candidate John Edwards and former Alabama Gov. Don Siegelman, involved politically motivated charges brought by overzealous prosecutors.
And I wrote about Edwards:
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
Thanks to expansive federal law, the threat of criminal liability hangs over all elected officials, federal, state, and local. As professors Rick Pildes and Sam Issacharoff explain in their amicus brief in the Siegelman case, “Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600.”
We don’t know yet whether Rick Perry violated the law and whether the law he is accused of violating is constitutional. But don’t be too quick to equate an indictment with actual wrongdoing by the governor, regardless of your political orientation.
This post originally appeared on Election Law Blog.
Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He is at work on a book on campaign finance reform and political equality for Yale University Press.