The Honest-Services Surplus: Why There's No Need (or Place) for a Federal Law Prohibiting "Criminal-esque" Conduct in the Nature of Bribes and Kickbacks

Vanderbilt Law Review

The issue in the Skilling case generating the most publicity involves the Supreme Court’s inquiry into whether the honest-services statute is unconstitutionally vague. Supporters of the law have argued that, because of its broad and flexible reach, the law is an important weapon against state and federal corruption and that “even kindergartners” can distinguish between what it forbids and what it allows. Critics of the law argue that the sweeping and ambiguous provisions of the law reach too far, creating an undefined category of “criminal-esque” conduct that defendants are charged with knowing intuitively, without regard to any sort of criminal offense containing discrete elements.

In this article, Tim O’Toole argues that the only fair and workable solution is for the Court to strike down the statute and force Congress back to the drawing board. Congress should then figure out concretely what it wants to prohibit. Doing so will require Congress to determine whether this sort of harm is not already covered by one of the myriad corruption and fraud statutes already on the books. If a gap remains—and he argues that one does not—Congress should adopt a narrow statute with discrete elements to address it. Anything else will just leave us right where we are now, with individuals facing twenty-year penalties without having any meaningful way of knowing what they can and cannot lawfully do.

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