Additionally, a string of landmark Supreme Court decisions during the era gave new force to individual privacy rights and to curbs upon POLICE POWER: highly influential cases resulted in
Trang 1the absolute immunity enjoyed by judges or legislators In theory, the defense allows police to
do their job without fear of reprisal In practice, however, it has become increasingly difficult for individuals to sue law enforcement officers for damages for allegedly violating their civil rights
U.S SUPREME COURT decisions have continually asserted the general rule that officers must be given the benefit of the doubt that they acted lawfully in carrying out their day-to-day duties, a position reasserted in Saucier v Katz, 533 U.S
194, 121 S Ct 2151, 150 L Ed 2d 272 (2001)
History
Society has grappled with misconduct and corruption issues for as long as it has had police officers Through the mid-to-late 19th century, private police forces were commonplace, and agents of Pinkerton’s and other for-hire services became notorious as the muscle that employers used to violently end strikes Heavy-handed law enforcement as well as vigilantism by groups such as the racistKU KLUX KLANspurred passage of the Civil Rights Act of 1871, which criminalized acting under state law to deprive a person of constitutional or other rights under federal law
SECTION1983 of the act remains a critical tool for enforcing constitutional rights, with direct appli-cability to police misconduct cases
The twentieth century saw multiple legal, administrative, and scholarly approaches to the problem Some developments bore indirectly upon police misconduct, such as the passage of the Civil Rights Act of 1964, which gave new protections to citizens who had long suffered discriminatory policing Additionally, a string of landmark Supreme Court decisions during the era gave new force to individual privacy rights and to curbs upon POLICE POWER: highly influential cases resulted in the strengthening
of FOURTH AMENDMENT rights against unreason-able SEARCH AND SEIZURE, evidentiary rules forbidding the use at trial of evidence tainted
by unconstitutional police actions, and the establishment of the so-called Miranda warning requiring officers to advise detained suspects of their constitutional rights
Whereas these decisions profoundly shaped the legal and social landscape, renewed focus on police misconduct and corruption occurred in the latter part of the century As the pioneering criminologist Herman Goldstein argued, tradi-tional views were based on the assumption that police abuse reflected the moral failings of
individual officers—the so-called bad cop Public scandals began to shape a new view of the problem In 1971, New York City organized the Knapp Commission to hold hearings on the extent of corruption in the city’s police depart-ment Police officer Frank Serpico’s startling testimony against fellow officers not only revealed systemic corruption but highlighted a longstanding obstacle to investigating these abuses: the fraternal understanding among police officers known variously as “the Code
of Silence” and “the Blue Curtain” under which officers regard testimony against a fellow officer
as betrayal
Broader recognition of the problem brought more ambitious reform efforts in the 1980s and 1990s Spurred by the work of criminologists such as Goldstein and others, police departments sought to improve organi-zational rules, training, and prevention and control mechanisms Such efforts are reflected
in the publication of a code of police conduct
by the International Association of Chiefs of Police, more rigorous training for officers, and experimentation with so-called community policing programs to improve ties between officers and the public Several cities estab-lished joint police and civilian complaint review boards to give citizens a larger role in what traditionally had been a closed, internal process by police departments
Among the most dramatic examples of system-wide reform is New York City’s response
to longstanding brutality, discrimination, and corruption within the New York City Police Department (NYPD) After flirting with civilian review of complaints against police in the 1960s, the city committed to it after public outcry over the videotaping of officers beating citizens who violated curfew in 1988 The city subsequently established its Civilian Complaint Review Board, which became an all-civilian agency in 1993 In
1992, responding to new complaints, Mayor David N Dinkins appointed the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, known as the Mollen Commission Two years later, the commission concluded that the city had alternated between cycles of corruption and reform In 1995 Mayor Rudolph
W Giuliani established the full-time Commis-sion to Combat Police Corruption (CCPC) as an entity independent from the police department The CCPC monitors the NYPD anti-corruption
8 POLICE CORRUPTION AND MISCONDUCT
Trang 2policies and procedures, conducts audits, and
issues public reports
Contemporary Problems
Despite legal safeguards and well-intentioned
reforms, police problems have continued to
produce headlines The exact scope of
miscon-duct is unknown Misconmiscon-duct complaints can
be quantified on a city-by-city basis, but these
data are often subjective, and far more
com-plaints are filed than ever are evaluated at trial
Corruption is even harder to measure As the
National Institute of Justice acknowledged in its
May 2000 report, The Measurement of Police
Integrity, most corruption incidents go
unre-ported, and data that do exist“are best regarded
as measures of a police agency’s anticorruption
activity, not the actual level of corruption.”
During the late 1990s, highly publicized
cases in New York, New Jersey, Texas, Detroit,
and Cleveland exposed an apparently new
trend: police drug corruption In the Cleveland
case alone, the FBI arrested 42 officers from five
law enforcement agencies in 1998 on charges of
CONSPIRACY to distribute cocaine In a 1998
report to U.S Congressman Charles B Rangel,
the federal GENERAL ACCOUNTING OFFICE (GAO)
found evidence of growing police involvement
in drug sales, theft of drugs and money from
drug dealers, and perjured testimony about
illegal searches The GAO survey of police
commission reports and academic research
suggested a troubling new dimension not
previously seen in studies of police corruption
Traditionally, police corruption had been
un-derstood to involve individuals acting alone, but
the new trend revealed officers working in small
groups to protect and assist each other
In 1999 this pattern emerged in one of the
worst police corruption scandals in U.S history
The scandal involved the Los Angeles Police
Department’s Rampart precinct and particularly
its elite anti-gang unit, CRASH (Community
Resources Against Street Hoodlums) Following
local and federal investigations, CRASH was
dismantled, some 70 officers were investigated,
and several either pleaded guilty to or were
convicted of crimes ranging from drug theft and
peddling to assault, fabricating arrests, and
filing false reports
The Rampart scandal bore heavy costs,
financially as well as in human terms Several
dozen criminal convictions credited to the work
of the corrupt officers were overturned By
2003, the city had already paid $40 million to settle lawsuits In a settlement with the federal government in 2000, the Los Angeles City Council accepted a CONSENT DECREE that placed the city’s police department under the supervi-sion of a federal judge for five years to implement and monitor reforms
However, reform is no panacea Even New York City’s extensive reforms were called into doubt by two high-profile police cases in the 1990s Both highlighted the difficulties inherent
in prosecuting even apparently clear-cut mis-conduct The first, in 1997, involved Haitian immigrant Abner Louima, who was shockingly beaten in a police cruiser and sodomized in a bathroom with a broom handle by four NYPD officers Louima ultimately settled a civil case against the department for $8.7 million in 2001, one of the highest police brutality settlements ever paid and the highest by New York City since paying a $3 million settlement in the choking death of Anthony Baez in 1994
Yet, despite much public frustration, prose-cution of the officers was less conclusive Officer Justin Volpe pleaded guilty to leading the
SODOMY assault and was sentenced to 30 years
in prison However, in 1999 his fellow three officers were acquitted on charges of assault in the police cruiser; one of them, officer Charles Schwarz, was convicted of violating Louima’s civil rights for holding him down during the bathroom assault In 2000 all three were convicted of obstructing justice for their actions
in covering up evidence of the attack, but these convictions were later overturned in United States v Schwarz, 283 F.3d 76 (2d Cir 2002)
After a new trial on the civil rights charge was ordered, Schwarz reached a plea bargain in September 2002, agreeing to be sentenced to a five-year prison term
The second New York controversy involved the killing in 1999 of an unarmed man Four undercover police officers shot Amadou Diallo
41 times after stopping the Guinean immigrant
in the vestibule of his apartment building, where, they said, he reached into his back pocket Large public protests attracted activists such as Susan Sarandon and former New York Mayor David Dinkins, who argued that the department’s so-called Aggressive Street Crimes Unit was, in fact, far too aggressive In 2000 the four officers were acquitted in a trial that
POLICE CORRUPTION AND MISCONDUCT 9
Trang 3supporters said vindicated them but that critics blamed on lax prosecution
During the late 2000s, a number of cases arose in which video surveillance recordings showed police officers abusing suspects, leading
to criminal charges being brought against the officers, or to prosecutors dropping charges against the suspects In one case, a police detective was indicted on threePERJURY charges after surveillance video conflicted with the detective’s testimony In another case, a video showed a police officer knocking a man from a bicycle during a cycling event The cyclist was originally charged with attempted assault, resist-ing arrests, and DISORDERLY CONDUCT, but the
PROSECUTORdropped the charges due to the tape
Outside the courts, mounting resentment over discriminatory misconduct by police officers has occasionally led to rioting In contemporary experience, the Los Angeles riots
in 1992 followed the acquittal of white police officers charged with the videotaped beating of black motoristRODNEY KING In April 2001, three days of rioting in Cincinnati followed the acquittal of a white police officer on charges
of shooting Timothy Thomas, a 19-year-old unarmed black man
Cities, courts, police departments, and criminologists all continue to examine ways
to bring meaningful reform to police depart-ments Some critics have argued that miscon-duct and corruption are age-old problems that resist all efforts at eradication; the best that society can do, in this view, is to monitor and correct Others trace recent problems toPUBLIC POLICY that emphasizes aggressive policing of drug, gang, and street crimes Whatever the cause and the solution, until more efficacious remedies are found, some citizens will still require protection from the very people appointed to protect and serve them
FURTHER READINGS Corporation for Public Broadcasting “The Rampart Scan-dal.” Frontline Available online at www.pbs.org/wgbh/
pages/frontline/shows/lapd/scandal (accessed Septem-ber 5, 2003).
Drug Policy Alliance “Police Corruption.” Available online
at www.drugpolicy.org/law/police/ (accessed August 23, 2003).
Hauser, Christine 2009 “When Evidence from Surveillance Cameras Leads to Charges against Officers ” New York Times (March 25).
Howell, Ron 2002 “Mother Hopes for Settlement.” News-day (February 5).
Hurtado, Patricia 2002 “Case Now Closed: Unusual Plea Deal Yields No Clear Win for Louima, Schwarz ” Newsday (September 23).
Kennedy, Rozella Floranz, ed “Fighting Police Abuse: A Community Action Manual.” ACLU Department of Public Education Available online at archive.aclu.org/ library/fighting_police_abuse.html (accessed August 23, 2003).
Klockars, Carl B., et al 2000 “The Measurement of Police Integrity ” Research in Brief Washington, D.C.: National Institute of Justice.
“Law Enforcement—Information on Drug-Related Police Corruption ” 1998 Government Accounting Office Report Washington, D.C.: Government Printing Office (June 29).
Manalili, Joseph, ed “Chapter 5: Remedies and Legal Developments ” Revisiting Who Is Guarding the Guar-dians? Washington, D.C.: U.S Commission on Civil Rights Available online at www.usccr.gov/pubs/guard/ main.htm (accessed August 23, 2003).
New York City Civilian Complaint Review Board “History
of the CCRB.” Available online at www.ci.nyc.ny.us/ html/ccrb/html/history.html (accessed August 23, 2003).
U.S Department of Justice Civil Rights Division, Coordina-tion, and Review Section “Addressing Police Miscon-duct: Laws Enforced by the United States Department
of Justice ” Available online at www.usdoj.gov/crt/cor/ Pubs/polmis.htm (accessed August 23, 2003) CROSS REFERENCES
Civil Rights; Conspiracy; Constitutional Law; Discrimina-tion; Due Process; Fourth Amendment; Immunity; Ku Klux Klan; Pinkerton Agents; Privacy
POLICE POWER The authority conferred upon the states by the Tenth Amendment to the U.S Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the health, safety, welfare, and morals of the community
Police power describes the basic right of governments to make laws and regulations for the benefit of their communities Under the system of government in the United States, only states have the right to make laws based on their police power The lawmaking power of the federal government is limited to the specific grants of power found in the Constitution The right of states to make laws governing safety, health, welfare, and morals is derived from theTENTH AMENDMENT, which states,“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” State legislatures exercise their police power by enacting statutes, and they also
10 POLICE POWER
Trang 4delegate much of their police power to counties,
cities, towns, villages, and large boroughs within
the state
Police power does not specifically refer to
the right of state and local government to create
police forces, although the police power does
include that right Police power is also used as
the basis for enacting a variety of substantive
laws in such areas as zoning, land use, fire and
BUILDING CODES, gambling, DISCRIMINATION,
park-ing, crime, licensing of professionals, liquor,
motor vehicles, bicycles, nuisances, schooling,
and sanitation
If a law enacted pursuant to the police
power does not promote the health, safety, or
welfare of the community, it is likely to be an
unconstitutional deprivation of life, liberty, or
property The most common challenge to a
statute enacted pursuant to the police power is
that it constitutes a taking A taking occurs
when the government deprives a person of
property or directly interferes with, or
substan-tially disturbs, a person’s use and enjoyment of
his or her property
The case of Mahony v Township of
Hamp-ton, 651 A.2d 525 (Pa 1994) illustrates how a
state or local jurisdiction can exceed its police
power Mahony involved a zoning ordinance
enacted by the township of Hampton in
Pennsylvania The ordinance prohibited a
private party from operating a gas well in a
residential district but allowed the operation of
such wells by the government Jack D Mahony,
a landowner who operated a gas well, objected
to the ordinance, arguing that the disparate
treatment of public and private operation of gas
wells was arbitrary and not justified by any
concerns related to the police power Mahony
noted that the STATE DEPARTMENT of
Environ-mental Regulation (DER) already regulated all
gas wells in the state and that there was no
factual basis for distinguishing between public
and private wells
The SUPREME COURT of Pennsylvania agreed
with Mahony that the regulation by the DER was
sufficient to secure the safety of the community
The court opined that if the township wished to
further ensure gas well safety, it could require the
posting of a bond with the township before
granting a license to operate the well Such a
measure would ensure that the gas well was
being operated by a financially secure person
who would have the resources to keep the well in
good repair The court held that the total ban on
private operation of gas wells in residential
districts was unreasonable and that it bore no real and substantial relation to the health, safety, and welfare of the community Therefore, the ordinance was an invalid exercise of the police power
FURTHER READINGS Bodenhamer, David J and James W Ely, Jr., eds 2008 The Bill of Rights in Modern America Bloomington: Indiana Univ Press.
McAffee, Thomas B., Jay S Bybee, and A Christopher Bryant 2006 Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments.
Westport, Conn.: Praeger Publishers.
CROSS REFERENCES Buck v Bell; Eminent Domain; Land-Use Control; Lochner v.
New York; States’ Rights.
POLICY The general principles by which a government is guided in its management of public affairs, or the legislature in its measures A general term used to describe all contracts of insurance
As applied to a law, ordinance, orRULE OF LAW, the general purpose or tendency considered as directed to the welfare or prosperity of the state or community
POLITICAL ACTION COMMITTEE
A group not endorsed by a candidate or political party but organized to engage in political election activities, especially the raising and spending of money for “campaigning.” Some political action committees (PACs) are organized solely to help defeat a candidate the group deems undesirable
PACs are most often organized around a particular trade, union, or business They are also organized to promulgate particular social, economic, or political beliefs or agendas For example, there are PACs formed to represent the interests of the pharmaceutical and auto-motive industries Likewise, from an ideological perspective onABORTION, there are both pro-life PACs and pro-choice PACs
Some PACs are sponsored by a corporation, business, or LABOR UNION Corporations, busi-ness interests, and labor unions that sponsor PACs are prohibited from contributing their organizations’ funds to the PACs they sponsor, but employees or members of the sponsoring organizations may contribute
Many types of special-interest groups have established PACs, including the following examples: coal operators, hospitals, labor
POLITICAL ACTION COMMITTEE 11
Trang 5unions, banks, doctors, feminist groups, lawyers, insurance agents, pharmaceutical companies, and manufacturers These groups commonly form PACs to promote their legislative goals
Some of these, such as the coal industry and labor PACs, generally give most of their dona-tions to candidates they expect to favor their legislative agendas Other PACs, such as those created by chiropractors or publishers, may dole out small contributions to dozens of candidates with widely varying political views
Nearly all PACs have specific legislative agendas Special-interest PACs are a major force
in the financing of congressional campaigns
Their contributions heavily favor incumbents
These PACs’ numbers and influence are grow-ing For example, in 1976 there were only 608 PACs; just 20 years later, in 1996, there were more than 4,000 PACs Since 1996, the number
of PACs has generally remained steady
Some PACs are not sponsored by an organization For example, some members of Congress have formed their own PACs These PACs are separate from their candidate commit-tees This separation allows them to accept contributions and distribute larger sums than they otherwise could through their own candidate
committees A newly formed PAC must register with theFEDERAL ELECTION COMMISSION(FEC) within ten days of its formation The PAC must provide the name and address for the PAC, its treasurer, and any affiliated organizations
Many politicians also form leadership PACs These PACs are not technically affiliated with the candidate Rather, they are a way of raising money to help fund other candidates’ cam-paigns Leadership PACs are often indicative of
a politician’s aspirations for leadership positions
in Congress or for higher office
Although PACs are used mostly by mem-bers of the House andSENATE, they also can be used in presidential campaigns For example, in Bob Dole’s 1996 presidential bid, Dole formed a leadership PAC called “Campaign America.” This PAC helped contribute $62,000 to state and local candidates in Iowa This type of money helped Dole to build a very strong base
of support for his presidential bid during the Iowa primaries, although he eventually went on
to lose that election bid The laws regarding public funding for presidential candidates are technically separate from the Federal Election Campaign Act, Pub L 92–225, 86 Stat 19,
2 U.S.C § 451, and are found in the Presidential Campaign Fund Act, 26 U.S.C §§ 9001-9012, and the Presidential Primary Matching Payment Account Act, 26 U.S.C §§ 9031–9042
PACs first came into existence in 1944 The Congress of Industrial Organizations (CIO) formed the first PAC to raise money for the re-election of President FRANKLIN D ROOSEVELT The PAC received voluntary donations from union members rather than from union trea-suries; this system did not violate the Smith Connally Act of 1943, which forbade unions from contributing to federal candidates Although commonly called PACs, federal elec-tion law refers to these accounts as “separate segregated funds” because money contributed
to a PAC is kept in a bank account separate from the general corporate or union treasury
In 1936 labor unions began spending union dues to support federal candidates who were sympathetic to the workers’ issues This practice was prohibited by the Smith-Connally Act of
1943, Pub L No 78-89, 57 Stat 163 (1943) Thus, labor unions, corporations, and interstate banks were effectively barred from contributing directly to candidates for federal office In 1944 the Congress of Industrial Organizations (CIO),
1979–80
1983–84
1987–88
1991–92
1995–96
1999–00
2003–04
2007–08
Contributions (in millions)
$60
$113
$159
$189
$217
$260
$310
$413
0 25 50 75 100 125 150 175 200 225 250 275 300 325 350 375 400 425
SOURCE: Federal Election Commission.
PAC Campaign Contributions, 1979 to 2008
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
12 POLITICAL ACTION COMMITTEE
Trang 6one of the largest labor interest groups in the
nation, found a way to go around the constraints
of the Smith-Connally Act by forming the first
political action committee, or PAC
The CIO’s political goal was to support the
re-election of President Franklin D Roosevelt
Because the CIO was a union and prohibited
from using union money to support a federal
candidate by the Smith Connally-Act, the PAC
circumvented the prohibitions of the act by
soliciting volunteer contributions from
individ-ual union members
In the wake of the WATERGATE political
scandal in the early 1970s, Congress passed
new campaign financing legislation known as
the Federal Election Campaign Act (FECA)
FECA was intended to do the following:
n achieve full disclosure of the sources of
campaign contributions;
n limit the size of campaign contributions by
wealthy individuals and organized interest
groups;
n provide public funding—with spending
limits—for presidential candidates; and
n enforce campaign finance rules through a
new administrative agency, the Federal
Election Commission (FEC)
This legislation also continued older
prohibi-tions on the use of corporate and union treasury
funds in federal elections These provisions of
FECA were sustained by theSUPREME COURTin the
leading case of Buckley v Valeo, 424 U.S 1, 96
S Ct 612, L Ed 659 (1976)
Following the 2002 midterm elections, a
new set of campaign finance laws went into
effect The Bipartisan Campaign Reform Act
(BCRA), Pub L No 107-155, 116 Stat 81, is
considered the most sweeping change of the
U.S campaign finance system since FECA The
legislation was sponsored by Senators JOHN
MCCAIN (R-AZ) and Russ Feingold (D-WI) and
Representatives Chris Shays (R-CT) and Marty
Meehan (D-MA)
The BCRA is an attempt to curb the use of
“soft money” in campaigns Basically, soft
money is money donated to political parties in
a way that leaves the contribution unregulated
Conversely, “hard money” consists of political
donations that are regulated by law through the
Federal Election Commission The soft money
loophole was created not by Congress but
by the Federal Election Commission in an
administrative ruling in 1978 The law also increases the contribution limits for individuals giving to federal candidates and political parties
PACs can donate up to $5,000 to a candidate’s campaign committee for each indi-vidual election bid, and they can give $5,000 per year to any other PAC PACs may receive up to
$5,000 from any one individual, PAC, or party committee during any given calendar year They may also donate up to $15,000 annually to any national party committee PACs that affiliate with other like-minded PACs are treated as one donor for the purpose of contribution limits
The Supreme Court has ruled that spending that supports or opposes a candidate, but is not coordinated with any candidate, cannot be limited Such “independent expenditures” can
be made by either individuals or PACs
Independent expenditures are those made on behalf of (or against) a candidate that are not coordinated with a candidate For example, an exporters’ PAC might spend $50,000 on televi-sion ads that are critical of a candidate’s stand
on import restrictions and urge a vote against that candidate
Political ads that urge the viewer to “vote for” or “vote against” a candidate are examples
of express advocacy and must be paid for from contributions that come under the restrictions
of federal campaign finance laws, including prohibitions on contributions by corporations
or labor unions Advertising campaigns discuss-ing issues—and not directly advocatdiscuss-ing the defeat or election of a candidate—are not subject to federal campaign finance laws Thus, these “issue advocacy” campaigns are not subject to limits on spending or contributions and are not required to disclose their contribu-tions or expenditures
As a candidate for president in 2008,JOHN MCCAIN criticized Democratic candidate BARACK OBAMA’Slinks to the Association of Community Organizations for Reform Now (ACORN)
ACORN’s PAC endorsed Obama, and Oba-man’s campaign paid $800,000 to a consultant that used ACORN in an effort to encourage low- and middle-income citizens to vote
FURTHER READINGS Anschutz, Auguste V., ed 2002 Campaign Financing in the United States: Issues and Laws Huntington, N.Y.: Nova Science.
Baran, Jan Witold 2008 The Election Law Primer for Corporations 5th ed Chicago: American Bar Association.
POLITICAL ACTION COMMITTEE 13
Trang 7Bauer, Robert F 2002 Soft Money Hard Law: A Guide to the New Campaign Finance Law Washington, D.C.:
Perkins Coie.
Biersack, Robert, Paul S Herrnson, and Clyde Wilcox, eds.
1999 After the Revolution: PACs, Lobbies, and the Republican Congress Boston: Allyn and Bacon.
——— 1994 Risky Business? PAC Decisionmaking in Congressional Elections Armonk, N.Y.: M.E Sharpe.
Corrado, Anthony 2000 Campaign Finance Reform New York: Century Foundation.
Herrnson, Paul S 2004 Congressional Elections: Campaign-ing at Home and in WashCampaign-ington 4th ed WashCampaign-ington, D.C.: CQ Press.
Ryden, David K., ed 2002 The U.S Supreme Court and the Electoral Process Washington, D.C.: Georgetown Univ.
Press.
CROSS REFERENCES Campaign Finance Reform; Elections.
POLITICAL CAMPAIGN LAW Statutes and court rulings that govern candidates running for public office
Political campaign laws have been enacted
to ensure fair elections and to prevent mislead-ing or false information from bemislead-ing given to voters Though federal and state laws that govern campaign financing dominate the head-lines, there are a host of state laws that a candidate must follow during a campaign A candidate who violates campaign laws risks criminal prosecution or the FORFEITURE of the public office
Political campaigns are protected by the
FIRST AMENDMENT, but FREEDOM OF SPEECH is not unlimited For example, state laws prohibit candidates from using the term “reelect” in campaign signs and literature if the person is not theINCUMBENTof that office Candidates are also barred from making “false claims of support” that falsely state or imply the endorse-ment of a political party or an organization
Moreover, a candidate cannot state in printed campaign literature that specific individuals endorse the candidate, without first obtaining written permission from those individuals All
of these laws speak to fraudulent MISREPRESENTA-TIONby a candidate
More difficult situations arise when one candidate alleges that another candidate has intentionally misrepresented the position of the other Open political debate is expected in a campaign, but candidates can be prosecuted if the claims are judged to be objectively false
Candidates who retract or withdraw challenged campaign literature may escape any penalties
for these actions if they do so in a timely manner However, false claims made in the closing days or hours of a campaign will be scrutinized more closely
Up until the early twentieth century, politi-cal campaigns were marred by corruption Citizens traded their vote for money or the promise of a government job or benefit Progressive Era reformers sought to diminish the power of political machines that used
BRIBERY, as well as coercion, to ensure the election of their candidates States have enacted criminal laws that prohibit bribing persons to vote or not vote in an election For example, a person may transport voters to the polls on election day but may not solicit votes Persons who directly or indirectly threaten the use of force, coercion, economic reprisal, loss of employment, or other harm to compel indivi-duals to vote or not vote for a candidate are also subject to prosecution
Political advertising on television and radio is also subject to regulation For example, news-paper print ads, along with radio and television broadcasts, must convey to the public that a message is a paid advertisement Such laws seek to prevent voters from believing that the message is actually news In addition, the name
of the candidate, party, or organization that paid for the advertisement must be disclosed at the beginning or end of the advertisement This requirement has been evaded at times when a shell organization is created to disguise the true identity of the sponsor
Candidates who violate these types of campaigns laws can be prosecuted A losing candidate typically lodges a complaint with the local district or county attorney, alleging certain violations If the district attorney finds merit in the allegations, a prosecution will follow This type of prosecution is rare, but a candidate who
is convicted of a campaign law violation may forfeit the nomination or office in question However, forfeitures will occur only if it is proven that the candidate committed the act or knew that another person committed the act Courts will reject forfeiture if the act was trivial
or accidental and if it would be unjust to declare forfeiture Even if a court declines to declare forfeiture, legislatures have the right to deter-mine their membership Occasionally, a legisla-tive body will refuse to seat a person who has committed campaign violations
14 POLITICAL CAMPAIGN LAW
Trang 8Candidates must follow campaign financing
rules State and federal laws authorize public
financing of many campaigns Candidates who
accept public financing must abide by the
strings that are attached to this funding In
addition, political campaigns must maintain
financial records of contributions and
expendi-tures, which are filed at designated times before,
during, and after a campaign Campaign
com-mittees may be fined for failing to file reports
on time or for substantive violations The
FEDERAL ELECTION COMMISSION (FEC) oversees
campaign financing for federal elections At
the state level, a campaign finance board or the
SECRETARY OF STATE may oversee this task
Congress enacted the Bipartisan Campaign
Reform Act of 2002 (BCRA), 116 Stat 81, which
has come to be known as the McCain-Feingold
law Senator JOHN MCCAIN (R-Arizona) and
Senator Russell Feingold (D-Wisconsin) were
the SENATE sponsors The law prohibited “soft
money” contributions to political candidates
and restricted corporations, labor unions, and
advocacy groups from spending their funds to
finance “electioneering communications” that
seek to influence a federal election In contrast,
“hard money” is the amount that an individual
may contribute to a political candidate; federal
law places strict limits on these contributions,
with individuals allowed to contribute only
$2000 to a federal candidate The U.S SUPREME
COURT, in McConnell v Federal Election
Commis-sion, 540 U.S 93, 124 S.Ct 619, 157 L.Ed.2d 491
(2003), upheld most of the law’s provisions
However, it struck down as unconstitutional a
provision that prohibited corporations, unions,
and other organizations from broadcasting
“issue” advertising specifically mentioning a
candidate for office within 60 days of a federal
election or 30 days before a primary or caucus
FURTHER READINGS
Currinder, Marian 2008 Money in the House: Campaign Funds
and Congressional Party Politics Boulder: Westview Press.
LaRaja, Raymond J 2008 Small Change: Money, Political
Parties, and Campaign Finance Reform Lansing:
University of Michigan Press.
Pinaire, Brian 2008 The Constitution of Electoral Speech.
Palo Alto: Stanford Law Books.
CROSS REFERENCE
Election Campaign Financing.
POLITICAL CAMPAIGNS
SeeDEMOCRATIC PARTY;ELECTION CAMPAIGN
FINANC-ING;ELECTIONS;REPUBLICAN PARTY
POLITICAL CRIME
A violation of law (either an act or omission to discharge a duty) that threatens, or is construed
to threaten, the security or existence of a sitting government, such as ESPIONAGE or CONSPIRACY or
TREASONorSEDITION It might be a violent or non-violent offense, and its motivation might be ideo-logical and/or religious The nature and range of such offenses, as well as punishment for them, will vary widely and according to each government that criminalizes such acts or omissions
FURTHER READINGS Passas, Nikos 1986 “Political Crime and Political Offender:
Theory and Practice ” Liverpool Law Review Vol 8, No 1.
(March) Ross, Jeffrey Ian 2003 The Dynamics of Political Crime.
Thousand Oaks, Calif.: Sage.
Tunnell, K.D 1993 Political Crime in Contemporary America: A Critical Approach New York: Garland Publishing.
POLITICAL QUESTION
A political question is an issue that the federal courts refuse to decide because it properly belongs to the decision-making authority of elected officials
Political questions include such areas as the conduct of foreign policy, the RATIFICATION of constitutional amendments, and the organiza-tion of each state’s government as defined in its own constitution The rule preventing federal courts from deciding such cases is called the political question doctrine Its purpose is to distinguish the role of the federal judiciary from those of the legislature and the executive, preventing the former from encroaching on either of the latter Under the rule, courts may choose to dismiss cases even if they have juris-diction over them However, the rule has no precise formulation, and its development since the 1960s has sometimes been unpredictable
The SUPREME COURT originated the idea of political questions in the early 1800s during its formative era As with other judicial doctrines created by the Court, the rule is interpretive and self-imposed It is neither a result of legislation nor a part of the U.S Constitution, although
it appears to emanate from the Constitution’s
SEPARATION OF POWERS The Court created the political question doctrine as part of the broader concept of justiciability—the issue of whether a matter is appropriate for court review Appro-priate matters are called JUSTICIABLE controver-sies and may proceed to court Political
POLITICAL QUESTION 15
Trang 9questions are not regarded as appropriate matters; they are not justiciable and, generally, will be dismissed The political question doc-trine will not be applied to every matter that arouses fierce public debate, as seen in the Court’s rulings on ABORTION and AFFIRMATIVE ACTION As the history of the Supreme Court shows, the determination of whether an issue is justiciable is at its own discretion
Chief Justice JOHN MARSHALL first used the term political question in 1803 at a time when the Court sought to tread delicately between warring factions of politicians in Washington
Not until 1849 was the idea elaborated, in response to a crisis in the state of Rhode Island known as the Dorr Rebellion: A political uprising had resulted in the passage of two separate state constitutions, the declaration of
MARTIAL LAW, and the promise of military intervention by President JOHN TYLER The Supreme Court was asked to settle critical cons-titutional questions about the nature of repub-lican government but refused (Luther v Borden,
48 U.S.[7 How.] 1, 12 L Ed 581 [1849]) Chief Justice ROGER TANEY instead delivered the first articulation of the doctrine: Federal courts should leave certain constitutional questions
to the legislative and executive branches in any matter that is“a political question to be settled
by the political power.”
From the mid-nineteenth century until the 1960s, the political question doctrine changed very little Then the Supreme Court began
to narrow it: Where previously a broad rule applied, now matters that would have been rejected as political questions became justiciable
Richard Nixon’s
counsel argued that
the president’s refusal
to comply with the
subpoenas of White
House tapes was a
political question
because it was a
dispute among
members of the
executive branch,
namely the president
and special
prosecutor The
Supreme Court
compelled Nixon to
produce the tapes,
prompting him to
resign on August 8,
1974.
AP IMAGES
16 POLITICAL QUESTION
Trang 10controversies In a landmark case in 1962, the
Court intervened to allow a challenge to the way
in which the Tennessee legislature apportioned
its voting districts (BAKER V.CARR, 369 U.S 186,
82 S Ct 691, 7 L Ed 2d 663) Again in 1969,
the Court took up a matter that previously
would have been dismissed This was its
decision that theHOUSE OF REPRESENTATIVEScould
not exclude a duly elected member who met all
constitutional qualifications, despite the
provi-sion in Article I of the Constitution that gives
both houses of Congress the power to judge
qualifications (Powell v McCormack, 395 U.S
486, 89 S Ct 1944, 23 L Ed 2d 491)
These cases cast doubt on the future of the
doctrine In 1974 the Court added further
uncertainty when it ruled against President
Richard M Nixon’s claim ofEXECUTIVE PRIVILEGE
in theWATERGATEscandal (UNITED STATES V.NIXON,
418 U.S 683, 94 S Ct 3090, 41 L Ed 2d 1039)
It is well settled that the federal courts cannot
supervise or control the decisions of the
president or other executive officials President
Nixon had relied on this fact when he defied
congressional subpoenas asking him to release
tapes and documents made in the White House
The Court chose, however, not to adhere rigidly
to the rule by holding that the demands of a fair
trial and criminal justice outweighed the
pre-sident’s claim
The subject of the political-question
doc-trine’s application also arose following the
Court’s decision in Bush v Gore, (531 U.S 98,
121 S Ct 525, 148 L Ed 2d 388[2000]) In aPER
CURIAMdecision, the Court decided that the State
of Florida violated theEQUAL PROTECTIONclause by
ordering a manual recount of certain Florida
counties following the highly contested 2000
presidential election Critics of the decisions
have argued that the Court should have ruled
that the issue was a political question and left
the issue to be resolved by state election officials
FURTHER READINGS
Arnhart, Larry 2003 Political Questions: Political Philosophy
from Plato to Rawls 3d ed Prospect Heights, Ill.:
Waveland Press.
Pushaw, Robert J., Jr 2002 “The Presidential Election
Dispute, the Political Question Doctrine, and the
Four-teenth Amendment ” Florida State Univ Law Review 29
(winter): 603 –23.
Tushnet, Mark V 2002 “Law and Prudence in the Law of
Justiciability: The Transformation and Disappearance
of the Political Question Doctrine ” North Carolina Law
Review 80 (May): 1203–35.
CROSS REFERENCES Apportionment; Constitutional Law; Dorr, Thomas Wilson;
Judicial Review; Warren Court.
POLITICAL TRIAL
A trial that addresses political questions, involves political officials, or serves political agendas In certain circumstances, the term is used in a pejorative sense to criticize a particular trial or proceeding as unfair or unjust
Although it is sometimes difficult to distin-guish political trials from ordinary LEGAL PROCEEDINGS, political trials generally fall into one of four categories The most familiar type of political trial is a partisan trial, which consists
of criminal legal proceedings instituted by the government to solidify its power, extinguish its opposition, or flex its muscle Such political trials, though taking place in a courtroom, have little to do with justice Instead, partisan trials serve to promote the ideology of those holding the reins of power
In many countries, partisan trials are easy to identify because the prosecutors, judges, and defense attorneys are chosen by the government based on their allegiance to the regime’s poli-tical philosophy In other countries, the govern-ment may exert subtle pressure upon judges and attorneys to influence the outcome of a case In either situation, such proceedings rarely produce a result that is fair or impartial Some
of the most notorious partisan trials took place
in Adolf Hitler’s Germany and Joseph Stalin’s Soviet Union, where many of the judges, prosecutors, and defense attorneys served as instruments of terror and propaganda for their totalitarian leaders
A second familiar type of political trial involves the prosecution of religious and political dissenters Since time immemorial, gov-ernments have been confronted by persons who disobey the law for reasons of conscience Such disobedience, which can take the form of active
or passive resistance, presents a dilemma for most governments
On the one hand, governments must pro-secute persons who disobey the law, to maintain the integrity of the legal system Yet, if the prosecution takes place in a public forum, a religious or political dissenter is likely to question the propriety of a particular law or policy and challenge the legitimacy or compe-tency of the existing government On the other
POLITICAL TRIAL 17