Since the midterm elections, President Barack Obama has been acting as if he feels liberated from parochial political concerns. After taking action on immigration, Cuba, and climate change, he should take on another risky, if less well-known, challenge by commuting the prison sentence of Don Siegelman, the former governor of Alabama. Siegelman, a Democrat, served a single term in office, from 1999 to 2003, in the last days before Alabama turned into an overwhelmingly Republican state. He’s spent the subsequent decade dealing with the fallout from the case that landed him in prison—a case that, at its core, is about a single campaign contribution. Siegelman ran for office on a promise to create a state lottery to fund education in Alabama. The issue went to a ballot question, and Richard Scrushy, a prominent health-care executive, donated five hundred thousand dollars to support the pro-lottery campaign. (Voters rejected the lottery.) After Scrushy had given the first half of his contribution, Siegelman reappointed him to Alabama’s Certificate of Need Review Board (the CON Board), which regulates health care in the state. Scrushy had served on the CON Board through the administrations of three different governors. The heart of the case against Siegelman came down to a single conversation that he had with Nick Bailey, a close aide of the Governor’s, about a two-hundred-and-fifty-thousand-dollar check from Scrushy for the lottery campaign. As summarized by the appeals court: Bailey testified that after the meeting, Siegelman showed him the check, said that it was from Scrushy and that Scrushy was “halfway there.” Bailey asked “what in the world is he going to want for that?” Siegelman replied, “the CON Board.” Bailey then asked, “I wouldn’t think that would be a problem, would it?” Siegelman responded, “I wouldn’t think so.”
In 2006, after a district-court trial before Judge Mark Fuller, Siegelman was convicted of seven counts, including bribery, conspiracy, and fraud. He was acquitted of twenty-two charges and sentenced to seven years in prison. (An appeals court overturned two of the seven convictions and allowed Siegelman out on bail during some of the time his case was on appeal.) Siegelman is currently incarcerated in a federal prison in Oklahoma; his projected release date is in 2017.
Throughout Siegelman’s legal ordeal, the Supreme Court has been in the process of deregulating American politics, most notably in the 2010 Citizens United decision. In that case, the Justices found that money is speech—that contributing to a political campaign amounts to a protected activity under the First Amendment. As the appeals court in Siegelman’s case noted, the charges in his case “impact the First Amendment’s core values—protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of these constitutionally protected activities.”
It seems clear that Siegelman was conducting the seedy, but routine, business of contemporary American politics. Scrushy contributed because he wanted something in return, which is why many, if not most, people contribute to political campaigns. (George Will made this point in a column in defense of Siegelman.) Why do “bundlers” become Ambassadors in congenial countries? Why do local contractors support mayoral candidates? Why do real-estate developers give to prospective (and incumbent) governors? Because they want something. Siegelman was convicted because the quid pro quo was too “explicit”—but, beyond the conversation about what Scrushy might want, there was no clear evidence that it was. Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.
Full Article: Why Obama Should Pardon Don Siegelman – The New Yorker.