The New Republic

One interesting point: if the electorate has been nationalized as you suggest, and I believe this is true, that strikes me as one more reason to wonder why we have an electoral college at all. Let's ban the thing once and for all.

- bungler

May 29, 2008 at 1:45am

I have no reason to question the argument. It seems you have plenty of evidence. And even the Obama anomoly I don't think would change the equation - unless there is a state with a large number of electoral college votes where the race is too close to call, and an extremely popular native son (or daughter) is chosen as the running mate, and that person has no negative impact in other palces, in which case it could be that the running mate would make a difference. I don't know that there is an example like that right now, however.

- fwslusser

May 29, 2008 at 3:27am

Your conclusion -- that Obama should do well despite soft polling in swing states -- gives me little comfort because your premise is weak. The polls haven't yet shown Barack with any kind of durable national lead and so all signs (at this admittedly early date) point to a repeat of the '00 and '04: both elections in which a popular vote/electoral mismatch were highly probable.

- dz

May 29, 2008 at 3:45am

I'm sorry but I don't much care what some political science student's A+ essay says about vice presidential picks having not mattered in the past. More than Iraq and the economy and SC nominations put together, this election's main story has been about putting somebody in the White House the likes of which we've never had before, i.e., it's all about race and gender. How many Obama bandwagon voters would be convinced to vote McCain simply if the latter picked a black VP (Colin Powel)? How many soccer moms for Clinton would give up on her if Obama picked a woman (Janet Napolitano), or if McCain picked a woman (Kay Bailey Hutchinson)? And what will the newly reunited Democratic Party do once deprived of half its voters whose interest in "Change" is only skin deep, when McCain chooses a black woman as his running mate (Condi Rice)???????

- chrisn

May 29, 2008 at 4:23am

The Vice President does matter as that person almost automatically becomes a candiate to succeed the President. Picking an elder statesman who is never going to be a candidate permits a Vice President who is not a rival to the President and who can act as an assistant President. Think of a Dick Cheney but with a positive influence. If you are looking for someone who could bring in additional votes, try Michael Bloomberg. He would be attractive to a lot of Ross Perot type independents who would otherwise be knee jerk Republican voters.

- Pictou

May 29, 2008 at 9:49am

This is a very silly article, really. The statement that "the Electoral College rarely matters" is absurd. The Electoral College is the only thing that matters. The fact that the results in the aggregate popular vote and the Electoral College seldom diverge is a completely different point. Obviously, the wider the margin in the aggregate, the less likely it is that the distribution of that vote will be such as to result in a different outcome in the Electoral College, but that isn't a conclusion driven by political science. Simple statistics will tell you that. Not long ago here in TNR there was a very good piece about how the demographics of the country have changed so that there is less and less political diversity in given areas of the country. This is why certain states have become reliably blue and others reliably red. Sure, as Mr. Patashnik points out, the redness and blueness is actually on the basis of class, education, etc., but those very traits are not evenly distributed across the states. Hence, where there is a preponderance of the traits that favor Democratic voting, the state is blue, and vice versa. This reality doesn't make the Electoral College less important, it makes the popular vote less important because the popular vote margins in larger and larger swaths of the country now make no difference. The outcome is increasingly determined in a handful of states where the demographic balance is such that they are not reliably blue or red. Furthermore, within those states, the outcome depends on a relatively small percentage of the voters who themselves are not reliably red or blue, so-called swing voters. Of course, it is demographics that drives those voting patterns as well, and, as Patshnik points out, the similarities in voting within these demographics will span borders. However, he completely fails to note that, while this is true, the distribution of the movable voters is very uneven. What drives the outcome are those cases where the spread between reliably red and blue voters in a state is small relative to the size of the bloc of movable voters. Those become swing states. In light of these distribution effects, to declare that the Electoral College doesn't usually matter makes no sense. It matters when it matters. The rest of the time, we just don't notice. There is a separate issue here, the so-called second myth, about the VP pick. Is Patashnik prepared to state that the VP pick is completely irrelevant to the voters? The evidence he cites is actually addressed to a different question, whether a VP candidate can reliably "win" his home state. The study Patashnik cites reaches this conclusion by discounting the cases where the state would have been won anyway. Unfortunately, once you do this, it is difficult to find enough instances to analyze. As well, the methodology is flawed. If you really want to answer this question properly, you have to normalize the vote in the VPs home state for the general election outcome, taking into account all of the demographic factors that Patashnik otherwise properly recognizes as the important drives, and then ask whether there is a consistent "over-vote" in the VPs home state, and by how much. A percent or two is hardly implausible. Let's suppose you can show that the outcome in a given state differs from the national result by a percent or two. Obviously, that is not going to swing a state that is reliably red or blue. BUT, what about the states on the margin, the critical swing or battleground states? Can a VP pick make a 2% difference in a key swing state? Sure it could. Patashnik also fails to distinguish two questions regarding the VP pick. One is whether there is a discernible "favorite son" effect. That's what the study he cites was about. The second is whether there is any discernible effect, a question not addressed. It might be that being from a state has no discernible effect but that there are voters, again depending on demographics, who are movable based on the VP pick. Then the issue becomes, which voters are movable and where are they distributed? Hypothetically, it might be much more relevant to the outcome in OH to have a VP who is perceived as strong on defense and security than to have someone from OH. Nothing whatsoever that Patashnik says makes this unlikely. It may be that this does not occur, that VP picks actually have no discernible impact on the voters anywhere. But that is not proven. To label the proposition that the VP pick matters a "myth" is simply not supported by the available evidence, at least not by any cited by Patashnik. Mr. Patashnik, don't go offering your services to manage any election campaigns any time soon. You may be correct in your conclusions here, but, if so, it is largely by accident. The analysis itself is very flawed. I hope and expect that Obama's managers are more aware of the realities of presidential elections in the current era.

- roidubouloi

May 29, 2008 at 10:12am

More analysis on the 1916 election where California by narrow margin made wilson president again. Also too consider are the untapped voters. how many supporters of a particular candidate did not show up at the polls.certain districts have 80% participation while others only have 60%. also post 2010 census will result in further shifting of electoral votes.America is becoming a pear in spite of emphasis on physical fitness.

- evilauditor

May 29, 2008 at 10:26am

Based on his lack of support from working class voters, Obama will lose in the fall against McCain with big margin.

- onlooker

May 29, 2008 at 11:48am

Decent analysis here regarding the unlikelihood of outcome-changing factors converging. But I take huge exception to the terse dismissal that John Edwards' addition to the ticket gave Kerry a 10-point bounce that evaporated. I seem to recall a month-long advertising blitz, and MSM gobbled up the money to place the ads, of a now-(and then-) discredited group called Swift Boat Veterans for Truth - Rovian operatives out of Houston headed by Fundie bigwig Bob Perry - personal friends and fiends of the Bushes. Now might their cynical machinations and media enablers have had something to do with Kerry's demise? A detached, windsurfing-alone John Kerry was, in my view, PERSONALLY bewildered to the point of incredulous reticence at the Swift Boat slander and his lead collapsed, but not because Sen Edwards was a cipher or mere shill. I think it matters to just enough people who backs the top candidate - there is no doubt that Gore helped Clinton twice and Cheney conferred continuity on GWB that helped his base even as it also frightened the sane. Ratfu*king Lieberman of course helped torpedo Gore as the Gore campaign cynically tapped his cachet among 'a certain' constituency concentrated in of all places Florida - pathetic! I know academics well. I am therefore even more skeptical of assertions by Social 'Scientists' in pronouncing on ever-variable human motives and behavior. So, where ciphers like Quayle had nothing to do with GHWB's success, this same H Bush's capitulation and conciliation with the Reaganites definitely helped the Reagan thing codify and win. The whole Voodoo Economics critique of happy memory (and abandoned) was 'bout the only thing HBush got right and look where it took us, Reaganomics being the pseudo-scientific folderol for the gullible and greedy espoused by the Friedmanists, Randists and Oligarchs who regularly shock and murder the body-politic of whole societies whose resources, including labor, that their puppet-masters covet.

- GregoryNelson

May 29, 2008 at 12:20pm

Perhaps this is just a result of a lull in campaign news, but there has definitely been far to much scrutiny of Obama's vice presidential options. There has also, I think been too much attention given to Obama's weaknesses in rural Appalachia. Actually, in both of these instances, the Clinton campaign has to be given some credit. It took a while, but the strategy they cobbled together in Pennsylvania has given them really the best possible results in a contest they had already lost. With the Republican race concluded, the Clinton campaign had at its disposal a broad swath of right-leaning independents, and they capitalised on this. The result has been that Obama looks overly weak in these areas, weaker than Clinton, and weaker than Gore and Kerry as well. But I think the numbers are deceptive. In the end, Clinton would lose just as handily as Obama among "hard working white voters." She is simply, for them, the lesser of two evils in what is the only political game in town right now. The sort of voter, as seen in West Virginia, who is willing to believe Obama is an unpatriotic Communist Muslim, and also the Anti-Christ, or who is unwilling to vote for him because he's black, was never likely to vote for Clinton in the general election either. An ad featuring her non-answer regarding when she had last attended church or fired a gun would have been enough to defeat her, as would her ardent pro-choice stance on abortion (assuming she was unwilling to toss that away with the rest of her scruples.) Obama may be weak among those voters, but so is any democrat, or any democrat progrssive enough to have made it so far through the primary calendar. So be it. That undue scrutiny of rural West Virginians has in turn elevated the vice presidential question. And sure, voters leery of voting for a black candidate would prefer to vote for Jim Webb. But, a) those same voters are just as likely to prefer John McCain even with Webb on the ticket, and b) even with Jim Webb standing beside him, Obama is still black. But courting said voters is ridiculous anyway. Since when do Democrats worry about alienating uneducated racists? Alienating uneducated racists seems to be a pretty good philosophy. I think Obama can win handily. The media keeps portraying him as weak and untested, but hasn't he already defeated the smartest, toughest, and most insidious person standing in his way? And if David Plouffe is half as good at electoral college math as he is at delegate math, Obama is in good hands.

- John

May 29, 2008 at 12:45pm

Eliminating the Electoral College, Bungler, among other things, would be yet another huge slap at the District of Columbia. Denied voting rights in the U.S. Congress, denied Statehood (etc.), it would take away one of the few elements of national power the lowly District does posssess--its three Electoral College electors.

- TULLIUS

May 29, 2008 at 1:06pm

It's foolish to say "the electoral college rarely matters" - of course it does. Sure, the winner of the popular vote almost always wins, but that neglects to mention that campaigns spend 99% of their resources chasing after electoral votes, and don't even both trying to drive up popular vote in safe states. The electoral college very much matters, as it changes the shape of the entire campaign.

- Ben C

May 29, 2008 at 1:19pm

I really can't stress how wrong this article is. It says: "A Bush voter in Ohio looks like a Bush voter in California". Are you really telling me that an average Obama supporter in California and New York is like an average Obama supporter in Iowa, Wisconsin or North Dakota and Alaska? Of course not. It's ridiculous.

- Ben C

May 29, 2008 at 1:25pm

Bungler, The electoral college serves one very useful purpose. It allows a president to be elected even among controvery. Without the electoral college the 2000 election was truly too close to call. Imagine the Florida debacle being spread out to every state that was close, instead of 1 recount you'd have 10 all with differing rules. You would never be able to have enough confidence in the vote to inaugurate a president. With the electoral college, the states send their delegations and you get a president by December 15th, regardless of controversy. -- JimFive

- JimFive

May 29, 2008 at 2:14pm

The inability of the VP Candidate to "deliver a state" notwithstanding, I still believe the VP choic has tremendous significance in this election because it will help frame the national debate, i.e. Guiliani = Security, Edwards = Economy. This especially crucial for the undecideds and independents who are really looking for every piece of information to helpthem make their decision. To paraphrase the "it's not what you say about the issues" bit, it's not what the VP Candidate can do for the Presidential Candidate, it's what does CHOOSING that VP candidate SAY ABOUT the Presidential candidate. In a polling question it's the difference between "Is the fact that VP Candidate X was chosen the reason why you chose to vote for McCain/Obama?" Probably No "Did the fact that McCain/Obama chose ______ for their VP and made issue ________ the center point of their campaign play a role in your decision?" Probably Yes.

- Gavriel Meir-Levi

May 29, 2008 at 2:40pm

but it's pronounced "throat wobbler mangrove"... Seemingly the only consistency in elections is that each election varies in some major and "historic" way from every other election. This time, part of why Obama beat Clinton is that he was able to translate internet-based grassroots support into viable field operations on the ground in states where someone like him (i.e. not a former First Lady with zillions of institutional contacts) had no business having a credible field operation. We saw this in Indiana and clearly his near-miss there pushed the final count AND perception of where the race was. ALSO - this may be the first election where the VP choice actually affects the presidential vote. If McCain picks Huckleberry or some other Bible-thumper, he will lose millions of centrist Dem votes, especially from women, who might otherwise have strayed from the Democratic party. It's like there's a bridge there for some D's ("he's an honorable man, he's a maverick, he did campaign reform with Feingold) to say why not. But if the lever says McCain-Hucklebunny or McCain-Romney or the like he will lose LOADS of those votes - he gives them no safe place to land. Conversely, whereas before Obama could have picked a Sebelius, for example, to bring women home, get executive experience, put another red state in play, now he has to go with Yet Another White Male, and one with security credentials, largely because of all the damage that HillBilly inflicted. This time VP could keep some demographics away from McCain and could help bring some working- class white back to where they should be all the time.

- Mr. Luxury Yacht

May 29, 2008 at 2:41pm

Obama is going to be prosecuted under 18 USC 1346 for his participation in the Rezko/Syrian mafia criminal enterprise. Evelyn Pringle has just completed her series on Obama at opednews.com. You should review the articles, and then review the discussion of 18 USC 1346 provided, in order to see for what activities Obama will probably be indicted. Final Chapter - Curtain Time for Barack Obama Evelyn Pringle 05/22/2008 2 Curtain Time for Barack Obama - Part V Evelyn Pringle 05/18/2008 9 Curtain Time for Barack Obama - Part IV Evelyn Pringle 05/16/2008 22 Curtain Time for Barack Obama - Part III Evelyn Pringle 05/15/2008 11 Curtain Time for Barack Obama - Part II Evelyn Pringle 05/13/2008 15 Curtain Time For Barack Obama - Part I Evelyn Pringle 05/12/2008 33 Discussion of 18 USC 1346 from: http://www.groom.com/_library/downloads/NAPPAArticle-Feb2006.pdf. This article provides brief guidance as to the manner in which courts have interpreted 18 U.S.C. § 1346, which generally provides that for purposes of federal mail and wire fraud statutes (18 U.S.C. §§ 1341 and 1343, respectively), a “scheme or artifice to defraud” includes a “scheme or artifice to deprive another of the intangible right to honest services.” Specifically, this article examines the manner in which courts have interpreted the broad language of § 1346 in circumstances that do not involve the explicit bribery of public officials. I. Background 18 U.S.C. § 1346 was enacted in 1988, for purposes of reversing the Supreme Court’s decision in McNally v. U.S.,483 U.S. 350 (1987). In McNally, the Supreme Court overruled a long line of lower court decisions by holding that the federal mail and wire fraud statutes did not encompass schemes to defraud citizens of an intangible right to honest government service from pubic officers. Id. at 355. By enacting 18 U.S.C. § 1346, Congress restored “honest services” within the ambit of the federal mail and wire fraud statutes, meaning that a scheme to deprive the public of “honest services” by a public official could be punished as mail or wire fraud (assuming, of course, that such an instrumentality was used as part of the scheme or artifice). II. Judicial Interpretations of the “Honest Services” Fraud A. General Parameters of the Statute Not surprisingly, the majority of cases that have analyzed the “honest services” fraud set forth in 18 U.S.C. § 1346 have involved the bribery of public officials, where the charge under § 1346 is in addition to other charges. However, there have been numerous prosecutions under § 1346 against public officials (and those who have corrupted public officials) for transactions that do not involve outright bribery, but which nonetheless involve the provision of cash or gifts to a public official in exchange for the public official’s exercise of power on behalf of the individual or entity providing the gratuity. Courts have recognized that the term “honest services,” as used in § 1346, is incredibly broad, but the statute has survived repeated challenges asserting that it is unconstitutionally vague, with courts resorting to a “common sense” usage of the phrase “honest services.” In rejecting a constitutional void-for-vagueness challenge to the statute’s wording, one court opined that “[c]oncrete parameters outlining the duty of honest services should not be necessary. . . . The concept of the duty of honest services sufficiently conveys warning of the proscribed conduct when measured in terms of common understanding and practice.” U.S. v. ReBrook, 837 F. Supp. 162, 171 (S.D. W. Va. 1993), aff’d. 58 F.3d 961 (4 th Cir. 1995). Another court demonstrated little patience for the defendant’s void-for-vagueness challenge in the context of a kickback scheme, holding that “[i]t should be plain to ordinary people that offering and accepting large sums of money in exchange for a city councilman’s vote is a type of conduct proscribed by the language of § 1346.” U.S. v. Paradies, 98 F.3d 1266, 1283 (11 th Cir. 1996). Nonetheless, courts have refused to allow § 1346 to be used as a “catch-all” that subjects every unethical or illegal act to federal mail and wire fraud prosecution. See, e.g., U.S. v. Bloom, 149 F.3d 649, 654-56 (7 th Cir. 1998) (noting, inter alia, that “not every breach of fiduciary duty works a criminal fraud”); U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003) (”the right to honest services is not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing”). Recognizing the difficulty of interpreting the undefined phrase “honest services,” courts have attempted to establish general criteria that must be satisfied to successfully assert an “honest services” fraud claim. One of the leading circuits interpreting the scope of the honest services fraud is the First Circuit Court of Appeals, which held that: First, . . . honest services convictions of public officials typically involve serious corruption, such as embezzlement of public funds, bribery of public officials, or the failure of public decision-makers to disclose conflicts of interest. Second, . . . the broad scope of the mail fraud statute . . . does not encompass every instance of official misconduct that results in the official’s personal gain. Third, and most importantly, . . . the government must not merely indicate wrongdoing by a public official, but must also demonstrate that the wrongdoing at issue is intended to prevent or call into question the proper or impartial performance of the public servant’s official duties. U.S. v. Czubinski, 106 F.3d 1069, 1076 (1 st Cir. 1997) (emphasis added) (internal citations and quotations omitted), (discussing the First Circuit’s prior decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1996). The Seventh Circuit has held that “[m]isuse of office (more broadly, misuse of position) for private gain is the line that separates run of the mill violations of state law fiduciary duty . . . from federal crime.” U.S. v. Bloom, 149 F.3d 649, 655 (7 th Cir. 1998). The court went on to note that “in almost all of the intangible rights cases decided . . . (before McNally or since § 1346), the defendant used his office for private gain, as by accepting a bribe in exchange for official action[,]” but also noted that “[s]ecret conversion of information received in a fiduciary capacity is a form of fraud against the owner of that information.” Id. Accordingly, the Seventh Circuit summarized its test for an honest services fraud as follows: “[a]n employee deprives his employer of his honest services only if he misuses his position (or the information he obtained in it) for personal gain” (emphasis added). Id. at 656-57. ——————————————————————————– The Tenth Circuit has likewise held that cases involving § 1346 “must be read against the backdrop of the mail and wire fraud statutes, thereby requiring fraudulent intent and a showing of materiality.” U.S. v. Welch, 327 F.3d 1081, 1107 (10 th Cir. 2003). However, the Tenth Circuit unequivocally rejected the Seventh Circuit’s position that a public official must seek “personal gain” to violate § 1346, stating that while it was unwilling to “define the exact contours of honest services fraud or the proof necessary to sustain it . . . to require an allegation of intent to personally gain would suggest that [a defendant is] justified in using whatever means necessary to achieve [his or her] goals . . . ,” which the Court was unwilling to do. B. What Constitutes an Honest Services Fraud? As noted above, the language of § 1346 is not helpful in categorizing what specific conduct by a public official is prohibited, and courts have been unwilling to set forth a litany of proscribed acts, instead setting forth general parameters that must be satisfied to successfully assert an honest services fraud. It should be noted, however, that Justice Stevens, in his dissent in McNally (vindicated by Congress’ reversal of McNally), stated the following: In the public sector, judges, State Governors, chairmen of political parties, state cabinet officers, city alderman, Congressmen, and many other state and federal officials have been convicted of defrauding citizens of their right to honest services of their governmental officials. In most of these cases, the officials have secretly made governmental decisions with the objective of benefiting themselves or promoting their own interests, instead of fulfilling their legal commitment to provide the citizens of the State or local government with their loyal service and honest government. McNally, 483 U.S. at 362-63 (emphasis added). The basic concept on an honest services fraud “is that the public is not getting what it expects and deserves: honest, faithful, disinterested service from a public official. This concept ——————————————————————————– applies whether the official is bribed or fails to disclose a conflict of interest.” U.S. v. Mangiardi, 962 F. Supp. 49, 51 (M.D. Penn. 1997). Addressing what constitutes an honest services fraud in the context of a union officer’s duty toward his union, a court held that “‘honest services’ contemplates that in rendering some particular service . . ., the defendant was conscious of the fact that his actions were something less than in the best interests of the employer—or that he consciously contemplated or intended such actions. For example, something close to bribery.” U.S. v. Boyd, 309 F. Supp.2d 908, 913 (S.D. Tex. 2004). Underlying § 1346 is the notion that “a public official acts as ‘trustee for the citizens and the State . . . and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty to them. Theft of honest services occurs when a public official strays from this duty.’” U.S. v. Sawyer, 239 F.3d 31, 39 (1 st Cir. 2001). When a government officer decides how to proceed in an official endeavor—as when a legislator decides how to vote on an issue—his constituents have a right to have their best interests form the basis of that decision. If the official instead secretly makes his decision based on his own personal interests—as when an official accepts a bribe or personally benefits from an undisclosed conflict of interest—the official has defrauded the public of his honest services. U.S. v. Lopez-Lukis, 102 F.3d 1164, 1169 (11 th Cir. 1999). According to the First Circuit, a public official can steal honest services from his public employer in two ways: (1) the official can be influenced or otherwise improperly affected in the performance of his duties, or (2) the official can fail to disclose a conflict of interest, resulting in a personal gain. U.S. v. Woodward, 149 F.3d 46, 57 (1 st Cir. 1998) (relying upon the court’s earlier decision in U.S. v. Sawyer, 85 F.3d 713, 724 (1 st Cir. 1996). In contrast, an employee’s failure to perform his job adequately, or his failure to adhere to the government’s code of conduct concerning permissible work-related activities, is not sufficient to Specific Instances Where Honest Services Fraud Has Been Found Most of the honest services fraud cases brought pursuant to § 1346 have involved, not surprisingly, clear-cut cases of bribery or the payment of “kickbacks” to public officials who exercised their influence on behalf of the person or entity paying such gratuity. Considering that bribery cases tend to be “clear cut,” in that there is, at a minimum, an exchange of something of value in return for an official action, the matters below involve less certain areas, where honest services fraud has been found (or alleged) notwithstanding the lack of a clear cut exchange of valuable consideration. Recent—and Well-Publicized—Cases Involving Claims of Honest Services Fraud (a) U.S. v. Abramoff A recent case asserting honest services fraud involves disgraced Washington lobbyist Jack Abramoff. On January 3, 2006, Abramoff pleaded guilty to a three-count information charging him with conspiracy, honest services mail fraud, and tax evasion. The honest services fraud charges to which Abramoff pleaded guilty are extensive—but essentially boil down to his failure to honestly serve his clients, his employer, and his attempts to corrupt public officials. Abramoff’s plea agreement, entered in the U.S. District Court for the District of Columbia, is available at http: //news.findlaw. com/usatoday/docs/abramoff/usabrmff10306plea.pdf (last visited January 16, 2006). With respect to the honest services fraud against his clients, Abramoff admitted that he used his influence with Native American tribes that he represented on gaming matters to cause them to hire (at above-market prices) “grass roots” and “public relations” firms in which Abramoff had an undisclosed ownership interest, and from which he was being paid 50 percent of net profits, in addition to his lobbying fee from the tribes. Moreover, Abramoff admitted that he provided lobbying services to a Native American tribe in Texas that was seeking to reopen its gaming operations, without revealing that he had been paid millions of dollars by a Louisiana tribe to oppose all gaming legislation under consideration by the Texas legislature. Abramoff avoided disclosing the clear conflict of interest to his law firm by telling the Texas tribe that he was providing his lobbying services free of charge, while he simultaneously engineered the tribe’s retention of a “grass roots” firm in which Abramoff had an undisclosed financial interest, and which paid Abramoff $1.8 million in fees as a result of the Texas tribe’s retention. ii. Honest Services Fraud With Respect to Abramoff’s Employer During the time that Abramoff was employed by a law firm, Abramoff agreed to represent a wireless company in securing a license to install wireless telephone infrastructure in the House of Representatives. Rather than entering into a retainer relationship with Abramoff’s law firm, Ambramoff instructed the wireless company to pay his fee to a non-profit entity that Abramoff founded, and that he used as a vehicle to fund trips and gifts for the politically influential. Abramoff did not disclose this arrangement to his employer, thus depriving his employer of fees to which it was entitled, which Abramoff admitted was an honest services fraud against his employer. iii. Honest Services Fraud—Corruption of Public Officials The lengthiest portion of Abramoff’s plea agreement concerns the allegations that Abramoff engaged in a conspiracy to commit honest services fraud by corrupting public officials by providing “a stream of things of value . . . in exchange for a series of official acts and influence and agreements to provide official actions and influence.” (Abramoff Plea Agreement, ¶ 32). The things of value to which Abramoff pled guilty to providing included “foreign and domestic travel, golf fees, frequent meals, entertainment, election support for candidates for government office, employment for relatives of officials, and campaign contributions.” (Id.). Specifically, Abramoff pled guilty to providing “Representative #1? (since identified as Representative Bob Ney (R-OH)) and “Staffer #1? with such lavish items as all-expenses-paid trips to the Northern Marianas Islands, Scotland, and to Tampa, Florida (for the Super Bowl). Other things of value provided by Abramoff to Representative #1 and Staffer #1, however, were not so lavish—such as “comped” meals at Abramoff’s Washington, DC restaurant—and included items that some may consider “normal” business expenses when it comes to politics, such as contributions to Representative #1’s campaign committee and contributions to the Republican National Party. Abramoff’s plea agreement states that he provided such things of value in exchange for public officials’: agreements to support and pass legislation, agreements to place statements in the Congressional Record, agreements to contact personnel in the United States Executive Branch agencies and offices to influence decisions of those agencies and offices, meetings with Abramoff’s . . . clients, and awarding contracts for services with . . . Abramoff’s law firms. Id. at ¶ 33. (b) San Diego Pension Fund Another very recent case involving allegations of honest services fraud in the context of public officials concerns the indictment of the former top executive of the San Diego City Employees Retirement System, the Retirement System’s lawyer, and three former trustees of the Retirement System. The indictment, announced on January 6, 2006, alleges that the Retirement System’s executive, its lawyer, and its former trustees committed honest services fraud by conspiring to approve enhanced retirement benefits for City of San Diego workers—including themselves—in exchange for allowing the City to underfund the Retirement System. According to the indictment, by early 2002, the Retirement System’s funding status was approaching only 82.3 percent, and, at such level, a “funding trigger” would have been tripped, requiring the City of San Diego to make a massive cash infusion to the Retirement System. As the funding trigger was about to tripped, the City negotiated a labor agreement that enhanced pension benefits for members of the municipal labor unions (including the indicted Retirement System employees), and the City advised the Board of the Retirement System that the increased pension benefits were “contingent upon” obtaining relief from the funding trigger that was about to be tripped. The indictment alleges that the indicted officials agreed to reduce the City’s funding obligations with respect to the Retirement System, and that the vote to approve such relief was linked to the enhanced pension benefits that the officials would receive. According to the indictment, such conduct constitutes a conspiracy to deprive citizens of San Diego with their intangible right to honest services from public officials. 2. “Pay-to-Play” Schemes Involving Campaign Contributions 3 The indictment is available at: http://www.signonsandiego.com/news/metro/pension/images/060106fedpensionindictment.pdf In U.S. v. Troutman, 814 F.2d 1428 (10 th Cir. 1987), the Tenth Circuit addressed a “pay- to-play” scheme involving the payment of campaign contributions by a bank for consideration for state business, which the court held to be violative of the Hobbes Act, 18 U.S.C. § 1951 (extortion). (It should be noted that the defendant was not charged with committing an honest services fraud, even though such a claim was viable at the time of the defendant’s arrest and trial). At issue in Troutman was the Investment Officer of New Mexico, who advised a bank bidding for state business that it had to contribute to a fundraiser for the Governor of New Mexico. The United States successfully prosecuted the Investment Officer for extortion, and, on appeal, the Tenth Circuit affirmed the conviction, noting that “[a]n extortion effort made under the color of official right is described as a public official’s attempt to obtain money not due him or his office.” Id. at 1456. The court went on to cite several cases from various circuits, holding, inter alia, that “[t]he coercive solicitation of political contributions is within the realm of actions that are illegal under the Hobbes act.” Id. (quoting U.S. v. Cerilli, 603 F.2d 415, 421 (3d Cir. 1979), and citing U.S. v. Dozier, 672 F.2d 531, 540 (5 th Cir. 1982), and U.S. v. Williams, 621 F.2d 123, 124 (5 th Cir. 1980)). In U.S. v. Kemp, 379 F. Supp. 2d 690, 697 (E.D. Penn. 2005), the court upheld the conviction of the City Treasurer of Philadelphia, who was convicted of extortion and honest services fraud based upon his acceptance of bribes from people doing business with the City. In upholding Kemp’s conviction for honest services fraud, the court noted that “there were specific intercepted communications where [a co-conspirator] and Kemp made agreements that because certain individuals did—or in some cases did not—make the requested contributions to either political activities or charitable events, they were, or were not, going to receive City business.” Id. Another case asserted an honest services fraud claim in the context of a “pay-to-play” scheme, although the scheme was not characterized as such. In Castro v. U.S., 248 F. Supp. 2d 1170 (S.D. Fla. 2003), the court addressed a “pay-to-play” kickback scheme in which judges serving on the Dade County (Florida) Circuit Court assigned criminal cases to selected defense attorneys who agreed to pay the assigning judges a percentage of the fees earned from each assigned case. The U.S. prosecuted the attorneys who participated in the scheme, alleging that the attorneys attempted to defraud the State of Florida of the judges’ honest services. The court held that the defendants had committed an honest services fraud, noting that public officials have inherent fiduciary duties to the public, and that violations of such inherent fiduciary duty are proper predicates to convictions under § 1346, even if an underlying state law or regulation was not violated. …

- John Ryskamp

May 29, 2008 at 3:15pm

In response to Bungler: I repeatedly hear the idea that the Electoral College serves no useful purpose, and therefore by Constitutional amendment it should be disbanded and replaced by the direct election of the President. I think this is a bad idea, but for a reason that is not too often understood. Every Presidential election is of huge national and worldwide importance. Because this is so, an accurate and relatively prompt determination of who he is elected President is vital. That's why in 1976 President Ford immediately conceded to President Carter. In that election, as in the 2004 Presidential election, Ohio was the decisive state. Even though in 1976 Ford lost Ohio by about one third as many votes as Kerry lost Ohio to President Bush in 2004, Ford immediately conceded to President Carter. Unlike the 2004 Presidential election in Ohio, in 1976 there was no talk by Ford of the election being stolen or manipulated. Ford knew that a recount of Ohio lasting for weeks would only cause national and even international chaos. One only needs to remember the electoral fiasco in 2000 in Florida to appreciate how important certainty is, both to the nation and to the world. I favor the Electoral College selection of the President as set forth in the Constitution, despite the facts that that process is cumbersome and that the Electoral College rarely (as in 2000) selects a winner who received fewer popular votes than the person who is the runner-up in the Electoral College. The great virtue of the Electoral College is, I think, that it promotes certainty. Consider, for example, a Presidential election in which the national vote among the two leading candidates is within 200,000 out of perhaps 150,000,000 votes cast. If the Electoral College were eliminated and the President were elected by popular vote, in such a situation every state could experience the chaos and uncertainty experienced in Florida in 2000. One candidate, behind by 200,000 votes, challenges the overseas military vote count in Nevada, hoping to make up a few thousand votes of the 200,000 vote deficit, while simultaneously in Virginia the apparent winner hopes to add to his margin by demanding a recount in several counties which use punchcard ballots, contending that there are hanging chads that represent votes for him. It would be Florida in 2000 all over again, but with all 50 states and the District of Columbia being in play simultaneously. The simple truth is that voting is a symbolic process -- that is, the voter’s intention is expressed symbolically by making an X on a paper ballot, by touching a computer screen, by darkening the appropriate circle on a ballot to be scanned, or by punching the appropriate chad with a stylus. As with any other process in which a person's intentions are expressed symbolically, there is a margin of error. That happened in Florida in 2000, and much chaos resulted. But it is better to isolate that problem to one state where a recount and determination ultimately can be made, than to make every vote in every state and the District of Columbia subject to the sort of chaos that Florida experienced in 2000. The Electoral College performs that useful function, and that's why it's elimination would be a mistake.

- Glenn

May 29, 2008 at 3:32pm

It's interesting that Ohio in 2004 is used as the centerpiece for the argument that the popular vote winner and Electoral College winner will rarely diverge, because I think Ohio in 2004 proves exactly the opposite. The turnout of evangelical voters (who overwhelmingly voted for Bush) increased dramatically due to the same-sex marriage measure on the ballot in Ohio that year. http://www.nytimes.com/2004/11/04/politics/campaign/04gay.html?_r=1&oref=slogin Without the ballot measure bringing out the evangelicals, Bush probably loses Ohio and the election, even though his popular vote lead would have been well over 2%. This theory that the predilections of white collar, working class or other categories of voters are "fungible" and can be spread evenly over the states seems to discount the idiosyncrasies that are present in individual states. Sheesh, just look at the differing reactions to Obama between white working class voters in Appalachia and in the Northwest. The attitudes toward Obama and the voting patterns in the two regions could not be more different. I do agree with Josh's general point that the VP decision is not as important as everyone seems to think it is. But it can make a difference if the choice is designed to swing one particular state (usually the nominee's home state). That's why I think Strickland is the most logical choice for VP this year. Kerry lost Ohio by about 1.5%. Assuming everything else is more or less the same, it's very hard to believe that the selection of the Governor of Ohio as the VP nominee would not erase that deficit in 2008.

-

May 29, 2008 at 3:34pm

"It's foolish to say "the electoral college rarely matters" - of course it does. Sure, the winner of the popular vote almost always wins, but that neglects to mention that campaigns spend 99% of their resources chasing after electoral votes, and don't even both trying to drive up popular vote in safe states." --------------------------- Yes, of course it "matters" in that it determines how the candidates allocate their resources. But no one is disputing that. That's not the point. The point is that, in assessing how likely Obama is to win, it's silly to discount national polls that show him leading, because of the eccentricities of the electoral college. If he wins the popular vote nationally, then he is overwhelmingly likely to win the electoral vote, assuming the popular vote margin is not within about 0.5%. Candidates target individual swing states, but whatever message they're using to target voters in Ohio and Michigan is likely to also move voters in other parts of the country (even though, yes, it's of course true that voters in different parts of the country are not all the same).------ http://politicalduel.blogspot.com

- Mystery Politico

May 29, 2008 at 3:46pm

One other thing. Yes, it's possible to concoct very specific counterfactuals in which something different had happened in Ohio in 2004, that swung the state to Kerry, while leaving Bush with the national popular vote win.....but so what? I can spin a million different scenarios in which this or that happened differently, leading to changes in the vote totals in various states. If you want to specifically design a scenario that leads to a popular vote / electoral college split, you can do it. But the overwhelming majority of realistic electoral scenarios will still have the popular vote and electoral vote winners being the same person.--------- http://politicalduel.blogspot.com

- Mystery Politico

May 29, 2008 at 3:51pm

Glenn, In 2000, Gore won the popular vote by over a half a million votes. Given the size of his lead, there would have been no need to recount in Florida if the popular vote had been the metric that determined the election. I understand your general premise and it's a reasonable one, but I just want to point out that it can work both ways. If the popular vote had been the determining vote in 2000, we would have been spared the Florida mess.

- Naomi88

May 29, 2008 at 3:55pm

Stunning how many of you commenters clearly skimmed the article before attacking the author. For God's sake, if you're going to bother arguing with someone at least bother to get your opponent's argument right. 1) Author was not arguing that the Electoral College /literally/ doesn't matter. Obviously, since the winner of the Electoral College wins the presidency, it's technically the only thing that matters. The argument being made was that the obsession over "swing states" and pandering to local tastes is overkill. He backs that up with a lot of good analysis of recent elections, backed up by other thorough studies from the field. The "Bush voters in Ohio are the same as Bush voters in California" statement was meant to be read /in context/, where you see that the point was that shifts in a candidate's appeal are almost never restricted to one or a few areas, because there are voters of every demographic in nearly every state, and shifts in appeal in one direction will almost certainly be mirrored across state lines. He provides ample evidence to this point, and simply taking a contrary stance without addressing the evidence deprives your argument of substance. 2) Just saying you think a candidate's selection of Vice President will make a significant impact on their electability does not make it true. If you can find clear evidence that this has happened at any point in the last 30 years, by all means enlighten us.

-

May 29, 2008 at 4:06pm

Sounds like Josh Patashnik was the one who advised the Clinton Campaign that they did not need to develope a primary campaign strategy beyond Super Tuesday. Good job Josh, we no longer need 2/3 of Congress and the States to change the Constitution. Oh, by the way, Ohio was THE battleground state in 2004. So to dismiss it as merely part of a zero-sum analysis belies the history of that election.

- mbt62

May 29, 2008 at 4:14pm

Wanna bet ????

- AikenYankee

May 29, 2008 at 4:45pm

Lunatic !!

- AikenYankee

May 29, 2008 at 4:49pm

Thanks for the insight Josh, now I know who advised the Clinton campaign that they did not did a primary strategy beyond Super Tuesday. Good job as well in changing the Constitution’s need for 2/3 majority to amend. And oh, by the way, Ohio was THE battleground state. To dismiss it as part of a zero sum electoral analysis belies the history of the 2004 election.

- Mark 62

May 29, 2008 at 5:08pm

Astounding omission - the potential that millions of Clinton supporters won't vote for Obama - an important fact that appears to be being treated as the 800 lb gorilla in the room. The campaign has horrified many potential supporters of the man with little to recommend him. Keith Olbermann, the ranting misogynist from MSNBC, speaks for Obama, and as such, we understand that our party no longer values us. The backlash against Obama will be huge and not touched on here.I count myself as one who may not vote for McCain - but will certainly not vote for Obama.

- Susan

May 29, 2008 at 6:43pm

Astounding omission - the potential that millions of Clinton supporters won't vote for Obama - an important fact that appears to be being treated as the 800 lb gorilla in the room. The campaign has horrified many potential supporters of the man with little to recommend him. Keith Olbermann, the ranting misogynist from MSNBC, speaks for Obama, and as such, we understand that our party no longer values us. The backlash against Obama will be huge and not touched on here.I count myself as one who may not vote for McCain - but will certainly not vote for Obama.

- Susan

May 29, 2008 at 6:48pm

"The Electoral College very rarely matters" ridiculous. Just b/c we don't have a popular vote victory/electoral college loss situation often doesn't mean the EC doesn't matter. The flawed obsession here, like in 2004, is with polling. Good luck with that. Someone please explain why an electoral college like system, frankly one far worse, is ok for the Democratic party but not America? I'm sure all you people calling for its end would sing a different tune if Hillary wins the popular vote.

- Obamyth

May 29, 2008 at 9:26pm

Third Myth: http://www.variety.com/article/VR1117986594.html?categoryid=18&cs=1 "But a review of primary coverage conducted by the Pew Research Center's Project for Excellence in Journalism and the Joan Shorenstein Center on Press, Politics and Public Policy at Harvard U. found that during the height of the primary season, 'The dominant personal narratives in the media about Obama and Clinton were almost identical in tone.'" "If anything, Obama appears to have gotten roughed up in the media more than Clinton, at least in recent months." "'The trajectory of the coverage began to turn against Obama, and did so well before questions surfaced about his pastor Jeremiah Wright,' according to the researchers. 'Shortly after Clinton criticized the media for being soft on Obama during a debate, the narrative about him began to turn more skeptical -- and indeed became more negative than the coverage of Clinton herself.'" "'Analysis suggests that both Obama and McCain are heading into the general election battle with less control over their personal messages than they might like. In many ways, the coverage of the campaign has been dominated by a series of small storylines or boomlets of coverage that so far have raised unresolved questions but not yet framed an overall storyline -- Obama's friendships and core ideology, the meaning of his promise of change; McCain's core ideology, his relationship with lobbyists and a looming battle, largely quiet during the primaries, over the direction of the conduct of the war in Iraq.'" The MSM is a bunch of wimps. Whether they're worried about stepping on conservatives' delicate little toes, or bending over backwards to prove that they're not too soft on Obama, they are hypersensitive to the slightest criticism.

- Whomever

May 29, 2008 at 10:26pm

Right. Keep drinking the stuff! I have family and friends in both Ohio and Pennsylvania, and I am telling you this: Obama has no chance of winning those states. So far, about 15 family members have re-registered as Independents and they are going for McCain. And that's just my little 'ole family!

- Joe

May 29, 2008 at 11:06pm

I'll go out on what I consider a very sturdy limb and say that Obama will win handily. A landslide is not out of the question. The country is a toxic environment for Republicans now--witness the recent special elections where a Democrat trounced the Republican, even in Mississippi, for God sakes. McCain getting the white working class vote? Some, maybe, but the Reagan Democrats are a fading bunch. My guess--when facing McCain and not Clinton, Obama will do very well with those folks. I'm thinking Obama 53% McCain 45%, the rest distributed among the Ron Pauls and Ralph Naders of the world. And those numbers make the electorial college argument moot.

- Allam Goldstein

May 30, 2008 at 8:56am

The present system of electing the President does not “work well” because the winner-take-all rule (currently used by 48 of 50 states) awards all of a state’s electoral votes to the candidate who gets the most votes in the state. Because of these 48 state laws, presidential candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the concerns of voters of states that they cannot possibly win or lose. Instead, candidates concentrate their attention on a handful of “battleground” states. 88% of the money is focused onto just 9 closely divided battleground states, and 99% is concentrated in just 16 states. Two thirds of the states, are effectively disenfranchised in presidential elections. Another effect of the winner-take-all rule is that a candidate can win the Presidency without winning the most popular votes nationwide – something that happens in 1 in 14 elections (1 in 7 non-landslide elections). We shouldn't have battleground states and spectator states in the first place. Every vote in every state should be politically relevant in a presidential election. And, every vote should be equal. We should have a national popular vote for President in which the White House goes to the candidate who gets the most popular votes in all 50 states. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC). The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC). The National Popular Vote bill has been approved by 18 legislative chambers (one house in Colorado, Arkansas, Maine, North Carolina, Rhode Island, and Washington, and two houses in Maryland, Illinois, Hawaii, California, and Vermont). It has been enacted into law in Hawaii, Illinois, New Jersey, and Maryland. These states have 50 (19%) of the 270 electoral votes needed to bring the law into effect. See http://www.NationalPopularVote.com

- mvy

May 30, 2008 at 12:41pm

Senator Obama will unite the Democratic Party at the convention through his oratorical skills. He will then unite the country and reconcile it with the world. I know he will do this because he graduated from Columbia University.

- josemarti

May 30, 2008 at 4:54pm