There are over 4,450 federal crimes scattered throughout the 50 titles of the United States Code. In addition, it is estimated that there are at least 10,000, and quite possibly as many as 300,000, federal regulations that can be enforced criminally. The truth is no one, including the government, has been able to provide an accurate count of how many criminal offenses exist in our federal code. This is not simply statistical curiosity, but a matter with serious consequences. The hallmarks of enforcing this monstrous criminal code include a backlogged judiciary, overflowing prisons, and the incarceration of innocent individuals who plead guilty not because they actually are, but because exercising their constitutional right to a trial is all too risky. This enforcement scheme is inefficient, ineffective and, of course, at tremendous taxpayer expense.
Supporters of the amendment characterize it as merely "closing loopholes." Reversing two U.S. Supreme Court decisions, however, is not closing loopholes, it is irresponsible. The Senate version of the STOCK ACT seeks to re-write multiple criminal laws in precisely the way the Supreme Court has declared would be unconstitutionally vague and overbroad. See Skilling v. United States, 130 S.Ct. 2896 (2010); United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). Requiring the criminal law to provide well-intentioned and law-abiding Americans with notice of what actually constitutes illegal activity is far from a loophole; it is a fundamental pillar of due process.
Specifically, the proposal would create a new federal criminal offense, which would criminalize something called “undisclosed self-dealing” on the part of lawmakers. In general, this “undisclosed self-dealing” offense would consist of any public official failing to properly disclose a completely undefined “financial interest” that was required to be disclosed by any law. This broad application is especially troubling in light of the numerous part-time state and local legislators who own businesses in their home states and who therefore have financial interests. For example, does a local legislator who owns a gas station have a financial conflict when he votes on a transportation bill that would repair a highway or a bridge in his home state?
Despite its constitutional infirmities, supporters have said that they “need” this law in order to prosecute state and local public corruption. Apparently, supporters of the bill are not concerned about the federal government’s admitted intrusion into purely state and local governance issues. They would rather criminalize behavior that state and local jurisdictions, who know the needs of their community best, might have decided should not be criminalized. That means, that what currently may be a transgression or mistake subject to state administrative law, will now be subject to a twenty year federal prison sentence.
On February 9, the House passed a version of the STOCK Act without these offensive provisions. So, someone has been listening. And that is a good thing because overly expansive criminal laws provide a template for abuse of power.
Regon is the director of white collar crime policy at the National Association of Criminal Defense Lawyers (NACDL).