United States v. Shirey, 359 U.S. 255 (1959)

MR. JUSTICE DOUGLAS, concurring.

The argument that § 214 requires the payment of money or other thing of value be made to the person who is to use his influence "to procure" an "appointive office" is not frivolous. The legislative history shows that that was one of the evils against which Congress acted. But I am also convinced that Congress moved against the other evil as well -- payment to a political party for the use of "influence to procure any appointive office." The abuse in appointing postmasters during the Coolidge administration was the occasion for the law; and then, as now (if the allegations in the information are to be believed) payments for those offices sometimes went to the party, sometimes to a politician. As Congressman Stevenson, who later introduced the measure in the House, said in answering a question as to who gets the money paid for "the appointive office":

Either it goes into his pocket and the pockets of his machine or it goes into the coffers of the Republican Party. If it does, it is the most blatant defiance of the civil service law that any party has ever had the hardihood to put over, and it is as disgraceful as the Teapot Dome proposition any day.

65 Cong.Rec. 1410.

The words used in § 214 are broad enough to include both evils.

I have sometimes felt, as my dissents show (see United States v. Classic, 313 U.S. 299, 331; Rosenberg v. United States, 346 U.S. 273, 310; United States v. A & P Trucking Co., 358 U.S. 121, 127), that the Court has not always construed a criminal statute so as to resolve doubts in favor of the citizen. But that principle -- as highly preferred as any in a government of laws -- does no service here. To hold the conduct charged in this information outside the Act is to find ambiguities and doubts not obvious on the face of the legislation nor justifiably imputed from the legislative history. The inclusion in the original version of § 215 of limiting words can indicate no more than that Congress intended a narrower scope for that section than for § 214. It does not show that § 214 was to be similarly narrowed.

Accordingly, I join the opinion of the Court.

1. SeeNote 4, infra.

2. The Attorney General wrote:

Further, under the proposed language, the solicitation or receipt of compensation, either on behalf of the solicitor or another, would be prohibited, whereas the existing law merely prohibits the solicitation or receipt of compensation, either as a political contribution or personal emolument on behalf of the solicitor himself.

(Emphasis added.)

The Attorney General’s letter first appears in S.Rep. No. 1036, 79th Cong., 2d Sess., and was carried over into a series of Senate Reports on bills embodying the proposed amendment. S.Rep. No. 2, 80th Cong., 1st Sess.; S.Rep. No. 7, 81st Cong., 1st Sess.; S.Rep. No. 3, 82d Cong., 1st Sess.

3. That paragraph provides:

Whoever solicits or receives any thing of value in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency or the United States or by requiring the payment of a fee because such person has secured such employment shall be fined not more than $1,000, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States.

4. The relevant portion of 18 U.S.C. § 215, reads:

Whoever solicits or receives, either as a political contribution or for personal emolument, any money or thing of value in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States shall be fined not more than $1,000 or imprisoned not more than one year, or both.

5. The Reviser’s Note refers expressly to other substantive changes made in the section at the time of codification, and appears to class the omission of the "payee" language under "changes of style."

It is also noteworthy that the Senate Report on the bill which became the "employment agency" amendment to § 215 in the 82d Congress, three years after the codification of Title 18, contained the letter of the Attorney General construing the pre-codification language with no suggestion that the meaning of that language had been altered by the changes made at the time of codification. See S.Rep. No. 3, 82d Cong., 1st Sess.

6. SeeNote 2, supra.

7. That the two provisions are reciprocal is further shown by the fact that the same substantive and stylistic changes were made in both of them in 1948, the Reviser’s Note under § 215 merely incorporating that under § 214 by reference.

It is argued that this conclusion is controverted by the circumstance that, on the same day as 44 Stat. 918 was introduced, another bill, also 44 Stat. 918 (now 5 U.S.C. § 21a) was also introduced requiring those appointed to public office under the United States to file affidavits that they had not paid any consideration to anyone in the expectation of receiving appointment, and that the two bills were described as "correlative." There is no reason to take the word "correlative" to imply an identity of scope between the two bills, since the word equally well bears the interpretation that 5 U.S.C. § 21a was intended to be merely supplementary to the criminal provisions of §§ 214 and 215. Indeed, it is, on its face, broader than § 214 in its reference to mere "assistance," as opposed to "influence."

8. This is not, of course, to suggest that an offer of a "political contribution" to a Congressman’s personal campaign fund in return for his promise of influence would be without the scope of § 214, or that the solicitation of such a contribution would not fall within § 215.

9. All of the cases cited by the Court in this connection involve clearly defined entities -- not "amorphous" groups.

10. It is apparent that the Revisers believed that the omission of the words "of the payee" in the recodification of 44 Stat. 918 added nothing to the meaning of § 215. See p. 266, supra.

11. The Court derives support for its holding from various statements concerning official corruption in office selling made on the floor of the House of Representatives some two years before the passage of the bill which is now §§ 214 and 215. Since these statements were directed exclusively to revelations of corruption on the part of sellers of influence and the Court appears to concede that the seller of influence is not covered by § 215 unless he is a "payee," it is difficult to see how these statements can be utilized to support a broader reading of § 214.