New Federalism's Unanswered Question: Who Should Prosecute State and Local Officials for Political Corruption?

By Brown, George D. | Washington and Lee Law Review, Spring 2003 | Go to article overview

New Federalism's Unanswered Question: Who Should Prosecute State and Local Officials for Political Corruption?


Brown, George D., Washington and Lee Law Review


I. Introduction

The conviction of Providence, Rhode Island, Mayor Vincent J. "Buddy" Cianci on federal corruption charges was a major national news story.1 The case's notoriety may owe a lot to the NBC television series "Providence" as well as to the theatrics of the trial, which at times exceeded those of the television show.2 Even Time viewed the following example of the Mayor's political philosophy as worth quoting: "The toe you stepped on yesterday may be connected to the ass you have to kiss today."3 However, much more was involved than good courtroom theatre and colorful maxims. The Cianci prosecution-preceded by a federal investigation colorfully entitled "Operation Plunder Dome"-is hardly unique. State and local officials from governors and mayors to police officers and sewer inspectors have faced federal charges for corrupt activity.

The Mayor is gone, but a fundamental question about American federalism remains: Is it a responsibility of the national government to ferret out and prosecute political corruption at the state and local level? The controversy is not new,4 but it seems increasingly important as the Supreme Court expands the reach of its federalism decisions, sometimes applying the "new federalism" with a vengeance.5

It is hard to believe that a doctrine which emphasizes state sovereignty, imposes limits on the national government's power over the states, and stresses the accountability of state officials to their citizens would accept as business as usual prosecution of those same officials by that same national government. Yet the Supreme Court has virtually ignored the issue, and the mountain of commentary generated by the federalism initiatives largely has not addressed it. Perhaps the inconsistency is so obvious that the Court is simply waiting for the right case to take a major step in curbing these prosecutions.

However, a close look at the issue of dealing with state and local corruption suggests that the answers are not clear cut. A few recent Supreme Court precedents involve such prosecutions,6 but they offer little guidance on how to reconcile the phenomenon with current federalism doctrine. Moreover, in the civil context, the Burger and Rehnquist Courts have decided a series of cases on patronage that represent an active role on the part of the national judiciary in dealing with state and local corruption.7 One can extrapolate from these cases support for federal corruption prosecutions. A substantial national presence in this area may also reflect deeply held constitutional and non-constitutional values within the legal system. Protecting civil rights is a well-accepted national responsibility. So is guaranteeing the right to vote and ensuring the openness, and perhaps the fairness, of subnational political and governmental processes. How big is the step from open government to good government? The notion of the national government as guardian of civic virtue at all levels is not far-fetched-at times, the system seems to have come close to acknowledging a generalized right to good government as part of the rights that belong to every citizen in our democracy.

This Article advances the thesis that the Court is likely to take a nuaneed position on the matter when cases presenting these issues come before it, while perhaps tilting toward the side of the new federalism. One can foresee the Court cutting back on some instances of federal prosecution while endorsing the basic federal role. We are left with the phenomenon of increasingly "autonomous" states whose officials are policed by the government from which they are autonomous. That may seem paradoxical, but so is federalism itself.

Part II of the Article outlines the type of prosecutions that occur most frequently and analyzes their statutory bases. Part III briefly examines the new federalism, both as pronounced by the Court and as seen by the academy. Part IV focuses on why the prosecutions seem fundamentally inconsistent with the premises of the new federalism. …

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