Reforming the transition of power aspects of the Constitution

[Michael Froomkin - U.Miami School of Law]

On Mon, 7 Nov 2005, Sanford Levinson wrote:

> This is extemely intresting, and if I had read the blog, I would have 
> known about it before now.  So the obvious question is whether a) it 
> would be proper to read this statute as applying to a speech in which 
> the candidate says, "I am delighted to announce that X has agreed to

I would have thought that the real problem isn't the public announcement 
but rather the conversation preceding that announcement between the 
candidate and X.  At some point, the primary purpose of the deal is to buy 
support, not to dazzle voters, and at that point there would seem to be 
risk under the statute.  Personally, I wouldn't think that for major 
cabinet jobs there was much real risk of valid prosecution, but can a 
candidate be sure that the prosecutors, especially those of the other 
party, will be reasonable?  What reasonable candidate would run the risk?

On the other hand, I would venture that a promise of the Ambassadorship to 
Mauritania to a large contributor could be a plausible violation.  Note, 
however, that here the statute may serve the candidate's ends more than 
the donor's: many contributors can be tantalized with the general 
prospect of goodies such as Ambassadorships, but the candidate can (and I 
know for a fact some do) say that they regret that federal law bars the 
discussion of specifics.  And some contributors then end up with 
appointments to the Tea Tasting Board or the like, to their great 
disappointment.


> serve as secretary of state and will bring her broad experience to the 
> office...." and b) if so, whether this is an example of a statute no 
> doubt passed with the best of motives that disserves the polity at 
> large?  Incidentally, does this apply to the offer of the vice 
> presidency?
>

Surely not in any legal system worthy of the name.

Anyway, to be purely hyper-technical, the vice-presidency isn't in the 
President's gift, it is in the electors (or voters), unlike Schedule C 
jobs...

> From: Michael Froomkin - U.Miami School of Law [mailto:froomkin at law.miami.edu]
> Sent: Mon 11/7/2005 8:55 AM
> To: Sanford Levinson
> Cc: isomin at gmu.edu; conlawprof
> Subject: RE: Reforming the transition of power aspects of the Constitution
>
>
>
> On Mon, 7 Nov 2005, Sanford Levinson wrote:
>
>> Ilya writes (as part of his very interesting posting):
>>
>> Sandy may be right that it should be. In parliamentary systems, the
>> transition period often lasts only a week or two. However, there are 2
>> countervailing considerations. First, in a parliamentary system, the
>> opposition party generally has a "shadow cabinet" all set to go long
>> before the election. So they don't need much time to choose ministers.
>> That is not true of US presidential candidates, for the good reason that
>> we don't even know who the candidate will be until not long before the
>> election, and there are good reasons not to choose cabinet members while
>> the election is going on. Second, the US government has many more
> [...]
>
> One of the many reasons we don't have a 'shadow cabinet' going into an
> election may be 18 USC sec. 599, which criminalized the promise of federal
> jobs "for the purpose of procuring support in his candidacy"?
>
> I blogged a bit about this before the last election at
> http://www.discourse.net/archives/2004/03/why_kerry_will_not_appoint_a_shadow_cabinet.html
>
>
> --
> http://www.icannwatch.org   Personal Blog: http://www.discourse.net
> A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
> U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
> +1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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>
>

-- 
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
                        -->It's warm here.<--