The Hobbs leviathan: the dangerous breadth of the Hobbs Act and other corruption statutes.

• Author: Gawey, John S.

"[T]he more corrupt the State, the greater the number of its laws." (1)

BACKGROUND

On March 2, 1942 the Supreme Court infamously upheld the Second Circuit's reversals of extortion convictions for the Local 807 branch of the International Brotherhood of Teamsters in United States v. Local 807 International Brotherhood of Teamsters. (2) For years, Local 807 routinely stopped out-of-state non-union trucks carrying large quantifies of merchandise as they entered New York City and demanded, sometimes violently, (3) that the drivers pay regular union-fees and permit union-members to drive and unload the trucks. (4) In affirming the reversals, the Court focused on an exception in the Anti-Racketeering Act of 1934. (5) That Act prohibited:

Any person who, in connection with or in relation to any act in any way or in any degree affecting trade or commerce or any article or commodity moving or about to move in trade or commerce--

(a) Obtains or attempts to obtain, by the use of or attempt to use or threat to use force, violence, or coercion, the payment of money or other valuable considerations, or the purchase or rental of property or protective services, not including, however, the payment of wages by a bona fide employer to a bona fide employee,, or

(b) Obtains the property of another, with his consent, induced by wrongful use of force or fear, or under color of official right.... (6)

Reasoning that Congress intended to exempt militant labor-activity from the statute's reach, the Court held that an "outsider who 'attempts' unsuccessfully by violent means to achieve the status of an employee and to secure wages for services falls within the exception." (7)

Local 807 set the stage for the enactment of the Hobbs Act, the federal government's comprehensive extortion statute. The case was the first high-profile prosecution under the 1934 Act, and it failed. (8) Congress reacted promptly. In April of 1943 the House passed an amendment to the Anti-Racketeering Act, but the measure died in the Senate. (9) Undeterred, the House passed another bill in 1945. Representative Hancock of New York stated that the bill's purpose was to counteract the Supreme Court's decision in Local 807, because the ruling "legaliz[ed] in certain labor disputes the use of robbery and extortion." (10) Representative Eberharter of Pennsylvania asked the bill's proponents if the amendment would change the federal definition of extortion. (11) The bill's opponents worried that without a special exception for militant labor-activity, (12) the definition of extortion in the amendment was "so broad as to permit one to drive a coach and six through" it. (13) In reality, Congress adopted essentially the same extortion definition as the one contained in section (b) of the 1934 Act. Yet looking back nearly sixty-five years, trepidations about the statute's breadth have proven remarkably prescient, albeit not in the context of organized labor. The amended version of the federal anti-racketeering law, the Hobbs Act, prohibits interference with interstate commerce by robbery or extortion. (14) The Act defines extortion as:

[T]he obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right. (15) Violators face up to twenty years of imprisonment. The problems of breadth did not arise from extortion by force, violence, or fear, but instead from the clause that was an afterthought. Under its current reading, extortion "under color of official right" affords prosecutors a wide range of discretion. Danger exists in this discretion. In broad terms, when Congress targets criminal activity--whether it is a corrupt labor union or a dirty politician--it often creates over-inclusive and overlapping statutes. (16) For instance, an extortion victim could also be punished for bribery. (17) Official right extortion (18) also threatens to criminalize blameless conduct in the perpetually gray area of political contributions. This is because most public corruption statutes punish public officials who accept payments intended to influence their official acts. Although influential political donations are unsettling, if one accepts the proposition that campaign donations routinely affect politicians' official acts, the Hobbs Act becomes no longer a law but a license for unchecked discretion. (19) Too much conduct, regardless of the parties' intents, can be criminal. This is inconsistent with the American tradition in criminal law, which discourages strict liability crimes. (20) Yet Justice Thomas's alternative interpretation--limiting official right extortion to false pretense crimes (21)--lacks both a solid historical grounding and a majority vote. Even putting that aside, limiting only the Hobbs Act does little to solve the problem. Official right extortion does not operate in a vacuum. Various statutes now proscribe official right extortion, thus any solution should be comprehensive. (22)

This Note will point out the constant parry and thrust between the Department of Justice and the Supreme Court, and also suggest solutions for over-criminalization in the federal corruption statutes. Official right extortion in the Hobbs Act will be the focus: Its history, its language, and the expansions and retractions in its scope. It will show that once the Supreme Court curtails a sweeping statute, federal prosecutors have at their disposal other sections of Title 18, so the parry and thrust continues. To be clear, extortion should not go unpunished. It cannot be seen as 'gust another crime," because it "destroys democracy, replacing the vote of the people with the vote of the dollar." (23)

Part I will examine the roots of extortion. The crime will be traced from the Hobbs Act to its beginnings in thirteenth century England. It will show that although the crime in the 1940s contemplated private racketeering, extortion at common law chiefly connoted governmental corruption. Part II will recount the federalization of common law extortion in the twentieth century. It will demonstrate that the Hobbs Act's expansion was not an isolated incident but instead part of a larger trend by the Justice Department to target political corruption. Part of the story is how other federal statutes aimed at political corruption expanded concurrently with the Hobbs Act. All of the statutes are in danger of losing a critical part of the crime's common law heritage. This stems from courts reading out the term "corruptly." Finally, Part III offers solutions aimed at narrowing the reach of the public corruption statutes while still enabling federal prosecutors to convict corrupt officials. Congress should revise the criminal code to eliminate the tendency of the public corruption crimes to have uneven elements and punishments. At the very least, federal courts should interpret the statutes more narrowly. The system can and should do a better job of limiting punishment to those who act with an evil mind.

1. THE HISTORY OF OFFICIAL RIGHT EXTORTION IN THE HOBBS ACT

   This Part will support a broad reading of official right extortion as a matter of history. However, the Note will question the wisdom of providing prosecutors with such a broad crime, especially considering the weak reading given to "corruptly" (24) in the public corruption statutes.

   Colloquially, extortion does not connote the passive acceptance of bribes by public officials. We think extortion requires threatening a victim for private gain--making someone "an offer he can't refuse." (25) The common law roots of extortion demonstrate otherwise; the crime encompassed many types of corrupt reciprocities. The word "corruption" is often used as an umbrella term for extortion, bribery, fraud, kickbacks, illegal gratuities and racketeering in general. Governmental corruption is an improper reciprocity between private individuals and the State. Different reciprocities between individuals and the State can be represented by the image of tree rings. In the middle is the dark core: Extortion. Moving outward, lighter shades emerge, such as consensual bribery, illegal gratuities, and legitimate campaign contributions. So all official right extortions are reciprocities, yet of course not all reciprocities are criminal. (26) The distinction turns upon what the lawmaker says is a good or bad reciprocity. (27) To be fair, reciprocities can make for a more efficient government. (28) That being said, it has been a centuries-long practice for Anglo-American societies to prohibit corrupt takings by public officials for private gain. The usual normative justification for corruption statutes is that public officials owe their constituents a neutral decision-making process--individual rights should never be bought or sold. From the Roman Republic to twentieth century, the prosecution of tainted officials has been a painful yet indispensable self-cleansing of the State. (29) From the outset, this Note assumes that corruption statutes, properly used, can achieve good ends for a community. Nevertheless, the scope of the Hobbs Act and its sister statutes must be constrained if we are to provide our public officials with any guidance on the lines between proper and improper reciprocities. The rub is that Congress and the courts cannot decide exactly what constitutes an improper reciprocity--the tree tings are poorly demarcated. The courts were correct in the 1970s when they interpreted the Hobbs Act to proscribe governmental corruption. Yet the Act's modern application strays dangerously far from its common law roots. Despite the growing severity of the punishments, public faith in government is shrinking. (30)

   1. Legislative History

      The legislative history of the phrase "color of official tight" is, in the words of one scholar, "scant." (31) Although the Anti-Racketeeting Act of 1934 did not contain the word "extortion," the term as defined by the Hobbs Act copied language...