Blog of the International Journal of Constitutional Law

Crosspost: Is the GOP Tax Law Unconstitutional?

[Editor’s Note: This piece originally appeared here in the San Francisco Chronicle on December 21, 2017.]

Stephen Gardbaum, UCLA School of Law; Member of the ICON-S Governing Council

Now that the Republican tax bill is law, is the matter settled, at least until November or, more likely, 2020? Not necessarily, because the courts may yet have a say on this question: Did the Republican party donors’ strong-arm tactics cross the line of legitimate campaign contributions into illegal bribery?

Take, for example, New York Republican Rep. Chris Collins’ candid identification of the “pressure” he was under to vote for it: “My donors are basically saying, ‘Get it (the tax bill) done or don’t ever call me again.’” For donors, Sean Lansing, the former chief operating officer of the Koch brothers’ political advocacy group Americans for Prosperity, provided a confirmation in June: “If they don’t make good on these promises (for tax reform) … there are going to be consequences, and quite frankly there should be.”

This unusually direct evidence of paying or withholding money for votes on the tax bill, and of legislators’ motivation, may well satisfy the narrow window that the Supreme Court has left for successful prosecutions under federal law. Essentially, what it takes to push our ordinary campaign finance system, which has been characterized as “legalized bribery,” over the line into the illegal is proof of a quid pro quo (this for that) exchange of contribution for a particular future legislative vote. It seems naive to understand these statements in any other way.

Whether such indictments will be sought, given the undermining of federal prosecutorial independence by the firing of 46 U.S. attorneys at the outset of the Trump administration, is another matter. But even if they are, the track record of recent corruption cases suggests that convictions are far from certain and any individual sentences handed down would be vastly outweighed by the donors’ collective return on their investment. Even with a conviction, the tax law that so directly and disproportionately benefits them would still remain.

Or would it?

There is another possible, more effective, recourse in the courts, although emphasis here must be placed on the word “possible.”

The Fifth Amendment, which bars all branches of the federal government from depriving any person of property (as well as life or liberty) without due process of law, places on Congress a duty to make laws through legitimate processes. Simply put, a tax law that would not have passed but for the kind of pressure exerted by donors and the exchange of votes for campaign contributions violates this duty, and the courts should find it unconstitutional.

Just as evidence gained as the result of an illegal search is excluded from trial, so too should legislation resulting from illegal bribery be excluded from the statute book. In both cases, the product of the illegal act is fatally tainted by the illegality. Relying exclusively on the prosecution of donors or members of Congress for bribery supplies too little deterrent and so does not adequately protect the integrity of the lawmaking process against what is, in essence, political looting.

The institutional independence of Congress is at a minimum when its members are beholden to donors for re-election, where hyper-polarized politics leaves no room for moderation, and where the same party controls both the executive and legislative branches. When this combination exists, as it does now, it is the perfect setting for excess, with few effective constraints on power and the pursuit of naked self-interest.

This is when it is critical for the courts to play their role in our constitutional democracy as the ultimate check on political overreaching.


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