In their brief supporting Kevin Ring‘s petition asking the Supreme Court to review his conviction, a first amendment group and well-known San Francisco criminal defense attorney outline the vague nature of the “honest services” wire fraud doctrine as it applies to lobbying and campaign contributions. The brief discusses how that uncertainty threatens to reduce legitimate participation in our campaign finance system.
Below is an excerpt of the brief:
According to the [D.C. Circuit] court of appeals, not only may the quid pro quo be implicit, not linked to any specific official act, and provable through evidence of lawful campaign donations; it can also rest on the donor’s unilateral hope that the gift might influence the public official in some unspecified way in the future.
The court of appeals’ decision amounts to a “meat-axe” where a scalpel is needed. . . . Reasonable, precisely targeted laws regulating gifts to public officials are entirely appropriate and consistent with First Amendment standards. . . . But the vague contours of the honest services statute, as interpreted by the court of appeals, will inevitably “operate to inhibit protected expression by inducing citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” . . . .
In 2010, the U.S. Supreme Court held that the federal crime of Honest Services Wire Fraud (18 U.S.C. § 1346) was unconstitutionally vague as applied to cases that did not include bribery or kickbacks. (Skilling v. U.S.). Ring hopes to have his convictions overturned on a similar basis.
UPDATE: Oct. 7, 2013: Supreme Court denies to hear Ring’s appeal. (SCOTUSblog).