Correction to This Article
A previous version of this editorial mischaracterized the status of Bruce Weyhrauch's case. Weyhrauch, a former Alaska lawmaker, has been indicted, not convicted, on charges that he violated the "honest services" law.

Supreme Court should strike down honest services law

Friday, December 11, 2009

A FEDERAL employee sits in his office reading the racing form during work hours. Is this guy lazy? Unethical? Or a criminal deserving of prosecution under federal law?

This hypothetical became a running gag at oral arguments before the Supreme Court on Tuesday, but it is no joke. A 28-word passage in federal law makes it a crime to "deprive another of the intangible right of honest services." This is true even if the perpetrator has not directly pocketed taxpayer dollars or financially defrauded his company. The law is so vague that most people would have no idea what behavior is prohibited. Or, as Justice Stephen G. Breyer put it, "Perhaps there are 150 million workers in the United States. I think possibly 140 [million] of them would flunk" the test.

The court heard two challenges Tuesday -- one brought by newspaper baron Conrad Black and another by former Alaska lawmaker Bruce Weyhrauch.

Mr. Black, former chief executive of Hollinger International Inc., was convicted in connection with newspaper deals that included payments to Mr. Black for a non-compete clause. Mr. Black argues that not only were the deals highly profitable for Hollinger but that the government should not have been able to charge him with an honest-services violation without proving that those payments were illegal or defrauded the company.

Mr. Weyhrauch, a Republican, was indicted after he sought employment with an oil services firm that was fighting proposed tax legislation. Mr. Weyhrauch, according to court documents, reached out to the company after he had decided not to run for reelection and five days before the legislative session was scheduled to end. He ultimately voted in favor of a tax rate that was higher than that originally favored by the oil firm.

The government has an important role in rooting out corruption in both the public and private sectors, and there are a host of laws already on the books, including bribery statutes, that prosecutors should turn to in addressing such transgressions. But not every ethical lapse is or should be a federal crime. Mr. Weyhrauch, for example, should have steered clear of a situation that smacked of a conflict of interest and a possible quid pro quo. Yet in the end, there is no evidence that Mr. Weyhrauch took a bribe or acted in a way that hurt Alaska's interests or illegally benefited the oil firm.

The employee who spends hours reading the racing form at work surely knows that what he is doing is wrong and that such behavior could and should cost him his job, but he probably has no idea that it might be illegal. Criminal statutes should be clear, putting everyone on notice about which behaviors will run afoul of the law. The honest-services law fails this simple but important test and should be struck down.

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