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Kirk And Quigley's Ethics Bills Could Clear Constitutional Hurdles, Experts Say

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Illinois Sen. Mark Kirk (R) and Rep. Mike Quigley (D) announced Monday that they are working together to tighten federal ethics laws. Ex-prosecutors say that if passed, their effort has a good chance of avoiding the constitutional missteps that doomed its predecessor -- and some of the charges against ex-Gov. Rod Blagojevich.

Last year, the Supreme Court struck down a law that prohibited "depriv[ing] another of the intangible right of honest services.” During oral arguments, one justice suggested that even sneaking a peak at sports news during work might count as fraud under that standard.

The court said the honest services provision was unconstitutionally vague except in the "solid core" of cases involving bribery and kickbacks.

The new bill from Quigley and Kirk, which has not yet been formally introduced in Congress, would target public officials with "undisclosed conflicts of interest resulting in personal financial gain" in addition to bribes and kickbacks.

Randall Eliason, the former chief of the public corruption section of the U.S. Attorney's Office for the District of Columbia, says the proposed bill would close a small but important legal loophole.

Because of the court's decision last year, Eliason says, "a state legislator could be steering massive public contracts to a company he secretly owned, and not disclosing it to anyone, and that would no longer be honest services fraud -- but if he was taking bribes to steer them to a company owned by someone else, it would. Doesn't make a lot of sense."

The bills from Quigley and Kirk would criminalize such self-dealing.

Adding a disclosure requirement and stipulating that officials must seek financial gain "solves the vagueness issue," says Jeffrey Cramer, a managing director at Kroll who helped prosecute disgraced former Sun-Times owner Conrad Black under the honest services law. (Fraud by private individuals like Black is not covered under the new bill.)

Cramer says that while he does not believe the Supreme Court's decision caused significant harm to prosecutors, it did force them to "tweak" their strategies. He says the disclosure requirement in the bill is significant in that "you have an affirmative obligation to disclose -- that's important, that was not there before."

For federal prosecutors going about their day-to-day work, the bill would not necessarily represent a huge step forward, since other corruption statutes, like mail and wire fraud, were still available.

All the same, Eliason says, "it certainly would make it easier to prosecute an important subset of public corruption cases, particularly those involving state and local officials, and would make the law regarding honest services fraud more complete and internally consistent. That would be a good thing."