I. Introduction

The conviction of Providence, Rhode Island, Mayor Vincent J. "Buddy" Cianci on federal corruption charges was a major national news story.1 The case's notoriety may owe a lot to the NBC television series "Providence" as well as to the theatrics of the trial, which at times exceeded those of the television show.2 Even Time viewed the following example of the Mayor's political philosophy as worth quoting: "The toe you stepped on yesterday may be connected to the ass you have to kiss today."3 However, much more was involved than good courtroom theatre and colorful maxims. The Cianci prosecution-preceded by a federal investigation colorfully entitled "Operation Plunder Dome"-is hardly unique. State and local officials from governors and mayors to police officers and sewer inspectors have faced federal charges for corrupt activity.

The Mayor is gone, but a fundamental question about American federalism remains: Is it a responsibility of the national government to ferret out and prosecute political corruption at the state and local level? The controversy is not new,4 but it seems increasingly important as the Supreme Court expands the reach of its federalism decisions, sometimes applying the "new federalism" with a vengeance.5

It is hard to believe that a doctrine which emphasizes state sovereignty, imposes limits on the national government's power over the states, and stresses the accountability of state officials to their citizens would accept as business as usual prosecution of those same officials by that same national government. Yet the Supreme Court has virtually ignored the issue, and the mountain of commentary generated by the federalism initiatives largely has not addressed it. Perhaps the inconsistency is so obvious that the Court is simply waiting for the right case to take a major step in curbing these prosecutions.

However, a close look at the issue of dealing with state and local corruption suggests that the answers are not clear cut. A few recent Supreme Court precedents involve such prosecutions,6 but they offer little guidance on how to reconcile the phenomenon with current federalism doctrine. Moreover, in the civil context, the Burger and Rehnquist Courts have decided a series of cases on patronage that represent an active role on the part of the national judiciary in dealing with state and local corruption.7 One can extrapolate from these cases support for federal corruption prosecutions. A substantial national presence in this area may also reflect deeply held constitutional and non-constitutional values within the legal system. Protecting civil rights is a well-accepted national responsibility. So is guaranteeing the right to vote and ensuring the openness, and perhaps the fairness, of subnational political and governmental processes. How big is the step from open government to good government? The notion of the national government as guardian of civic virtue at all levels is not far-fetched-at times, the system seems to have come close to acknowledging a generalized right to good government as part of the rights that belong to every citizen in our democracy.

This Article advances the thesis that the Court is likely to take a nuaneed position on the matter when cases presenting these issues come before it, while perhaps tilting toward the side of the new federalism. One can foresee the Court cutting back on some instances of federal prosecution while endorsing the basic federal role. We are left with the phenomenon of increasingly "autonomous" states whose officials are policed by the government from which they are autonomous. That may seem paradoxical, but so is federalism itself.

Part II of the Article outlines the type of prosecutions that occur most frequently and analyzes their statutory bases. Part III briefly examines the new federalism, both as pronounced by the Court and as seen by the academy. Part IV focuses on why the prosecutions seem fundamentally inconsistent with the premises of the new federalism. Part V turns to the patronage cases. It analyzes them at length and concludes that they provide substantial support for national action to deter corruption. Part VI examines other possible sources of support for a protective role on the part of the national government. I take as my point of departure Professor John Hart Ely's position "that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open."8 Numerous themes in the American legal tradition are relevant to the question of guarding the guardians. States may be unable to police certain problems adequately, especially if those involved are investigating themselves. The national government has always shown a special solicitude for matters such as the franchise, the functioning of the electoral process, and the protection of civil rights. I examine these and other themes, such as the development by the lower federal courts of the doctrine of a citizen's intangible right to honest services,9 with a view to arriving at an accommodation between the apparent dictates of the new federalism and the well-established role of the national government in prosecuting corruption. Part VII develops several scenarios in which the Court might be called upon to deal with what I regard as one of federalism's great unanswered questions.

II. The Prosecutions: The Present State of Play and the Uncertain Role of Congress

Prosecuting state and local corruption is an important activity of the Department of Justice. Between 1981 and 2000, 1,704 state officials were indicted on corruption offenses, 1,462 were convicted, and 554 were awaiting trial at the end of 2000.10 The twenty-year totals for local officials were as follows: 4,968 were indicted, 4,233 were convicted, and 1,735 were awaiting trial as of the end of the year.11 These prosecutions are sometimes the result of extensive investigations using all the tools of high-tech law enforcement as well as more classic methods. "Operation Plunder Dome," involving corruption in Providence, Rhode Island, has already been mentioned.12 Another equally colorful title is "Operation Lost Trust."13 This investigation stemmed from a "narcotics sting operation against a prominent lobbyist and former state legislator" in South Carolina.14 The investigation centered on a bill that would have legalized gambling on horse and dog races.15 The former legislator cooperated with the FBI and posed as a lobbyist for an FBI dummy corporation, offering cash during meetings which were wired and videotaped.16 The operation led to the indictment of twenty-eight individuals, primarily on extortion and drug charges.17

The phenomenon of what Judge John Noonan calls "the Larger Than Local Champion"18 is relatively recent. Analysts agree that it achieved its present status in the late 1960s and early 1970s as a result of three distinct developments. The first is a broad interpretation of the Hobbs Act19 pushed by United States Attorneys and generally supported by the federal courts. The Act deals with extortion. In United States v. Kenny,20 the U.S. Court of Appeals for the Third Circuit took an important step toward an expansive reading of the Hobbs Act.21 The court defined extortion broadly to reach what Judge Noonan has described as "a new crime-local bribery affecting Interstate Commerce."22 Federal prosecutors seized upon the Act after the court broadened it and made it the vehicle for "extortion convictions of an astonishing variety of state and local officials, from a state governor . . . down to a local policeman."23 One United States Attorney went so far as to describe the Hobbs Act as "a special code of integrity for public officials."24 Writing in 2000, Professors Abrams and Beale state that "the Hobbs Act now appears to be the statute of choice in prosecutions for bribery involving state and local officials."25

However, a parallel development is of equal significance: the articulation of the "intangible rights doctrine" under the mail (and wire) fraud statute.26 The statute is aimed at persons who use the mails "having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises."27 Beginning in the 1940s, the courts developed the notion that the "scheme to defraud" prong extended to the intangible rights of citizens to honest public services.28 As with the Hobbs Act, federal prosecutors pushed for aggressive applications of this broad reading. Again, the 1970s saw an expanded use of the statute in both the public and private sectors.29 Professors Abrams and Beale discuss how broadly the statute could reach, as illustrated by a case of corruption in Illinois:

The intangible rights cases substantially extended the concept of fraud. The cases typically involved neither an express misrepresentation, nor the loss of any money or tangible property by the victim of the scheme. The element of deceit or misrepresentation was generally satisfied by non-disclosure of dishonest or corrupt actions, and the loss of an intangible right obviated the necessity to determine whether the scheme caused any economic loss. For example, former governor Otto Kerner of Illinois was convicted of mail fraud on the theory that his failure to disclose a sweetheart deal with the racing industry deprived the public of his faithful services as an elected official.30

Indeed, one can argue that the mail fraud statute is potentially far broader in application than the Hobbs Act. The latter uses the term "extortion," which is contained to some degree by precedent. It has been broadened to include bribery, which is itself a legal term of art. The concept of honest services has no such common-law moorings, however. A frequently cited formulation from a federal court of appeals is that it reaches schemes that "[fail] to match the reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society."31

The third development was the increased priority placed on prosecuting political corruption at all levels by the Department of Justice.32 Judge Noonan traces this phenomenon to the administration of Richard Nixon,33 although one might view him as one of its victims. However, its most important formal manifestation was the creation of the Department of Justice's Public Integrity Section in 1976.34 In a sense, one can view the emphasis on state and local corruption as a parallel to the concern with corruption at the federal level, most obviously manifested in the creation of the Independent Counsel mechanism.35

Under the traditional analysis of federal prosecution of state and local officials, emphasis has been on the role of the federal executive and judicial branches, particularly the United States Attorneys and the lower federal courts.36 This analysis suggests that Congress has not been a major player in making state and local corruption a significant national priority. I believe that this picture is incomplete. The most dramatic example of Congress's endorsement of a strong federal role is its quick reaction to the Supreme Court decision in McNally v. United States,37 in which the Court ruled that the development of the intangible right of honest services doctrine under the mail fraud statute was an invalid statutory construction.38 Obviously, McNally was a significant threat to the expansive role that the mail fraud statute was playing. Congress responded quickly and decisively. The following year it enacted 18 U.S.C. [sec] 1346,39 which provides that, for purposes of the mail and wire fraud statutes, "the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."40 As one key congressional supporter indicated, the amendment was intended to "reinstate" pre-McNally caselaw, "including the right of the public to the honest services of public officials."41

The 1988 amendment is a dramatic example of congressional reaction to a judicial decision curbing the federal role. It does not stand alone, however. In 1984, Congress enacted the federal program bribery statute.42 The problem that the national government faced concerned acts of theft or bribery in connection with federal funds disbursed to states, localities, and other entities. Prosecutors brought bribery charges under the general federal bribery statute, which appears to apply only to federal officials and those closely associated with them.43 Lower courts were divided on whether the statute reached nonfederal officials administering federal funds.44 To resolve these doubts, Congress enacted a strikingly broad statute which, read literally, provides that any official of a government or other entity receiving a threshold amount of federal funds can be prosecuted for bribery as long as the matter with which the bribe deals is valued at more than $5,000.45 As with the honest services amendment, Congress intended to increase the power of federal prosecutors over state and local officials.46

Admittedly, the mail fraud and federal program bribery statutes are clear examples of this approach. The more fundamental question is whether the basic array of other federal statutes utilized in state and local corruption cases shows the same attitude toward the problem. The general view is that they do not. Rather, the standard description of these statutes is that they are aimed at criminal activity in general, and that federal prosecutors are forced to shoehorn acts of corruption under them.47 As one recent defense of the federal role puts it, because "Congress has considered, but never enacted, a general federal statute focused specifically on state and local corruption, federal prosecutors have resorted to charging state and local officials under an array of statutes that were not initially intended to target such corruption."48 However, this analysis is open to question. Indeed, one can offer a totally different interpretation of the statutory scheme, under which the federal prosecutor's problem is not finding a statute available for acts of state and local corruption, but rather choosing the one that fits best, bearing in mind the need to meet the relevant jurisdictional predicate. Consider the Hobbs Act: it punishes, in part, extortion that "obstructs, delays, or affects commerce."49 Extortion is defined as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."50 The italicized language seems clearly aimed at acts of corruption. Thus, the prosecutor's main problem might be the effect on commerce.

Another important statute in the federal anticorruption arsenal is the Travel Act.51 It punishes persons who travel in interstate commerce or use its facilities in order to commit certain acts that constitute or facilitate what the statute terms "unlawful activity."52 Unlawful activity, as defined, includes a number of crimes such as "extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States."53 Federal prosecutors use the Travel Act frequently in corruption cases. Such use is hardly surprising given the fact that the Act's references to extortion and bribery present a clear statutory basis for pursuing the sorts of crimes involved in these cases. A commentator has stated that "since the Travel Act was not drafted with official corruption in mind, its effectiveness in prosecuting official local corruption is necessarily limited."54 However, the plain language is not limiting in terms of its application to corrupt acts. If one considers only the four statutes just discussed, the substantive references to corrupt conduct are clear.

The complex federal statute known as RICO (Racketeer Influenced and Corrupt Organizations Act)55 is also widely used in corruption cases.56 Here, there is initial force to the argument that the statutory language does not directly refer to corruption, although the title does. However, the Supreme Court, with ample support from legislative history, has consistently held that courts should construe RICO broadly, extending beyond any core notion of activities that are solely the province of organized crime.57 Because the language applies to a wide range of economic crimes, there seems no reason to believe that it should not embrace corruption. Indeed, much of the RICO offense depends upon the commission of a number of so-called "predicate crimes," which include the Hobbs Act, the mail fraud statute, and the Travel Act.58 The organizational component of the RICO offense clearly can be triggered by commission of the predicate crimes in the context of political corruption.

In sum, I think that a strong case can be made that the prosecutorial developments which began in the 1970s are solidly grounded in federal statutes, as well as supported by both the executive and judicial branches. This phenomenon is consistent with the contemporaneous growth of federal criminal law in general, as well as notions of constitutional federalism embodied in Garcia v. San Antonio Metropolitan Transit Authority.59 The basic premise in both contexts is that few, if any, federalism-based limits exist on the power of the national government. This premise would certainly extend to prosecuting state and local corruption. However, beginning in the 1970s, a group of critics began to invoke federalism to question sharply the practices that all three branches of the national government seemed to endorse. In the last decade, that critique may have gone beyond policy considerations to find support in basic tenets of constitutional doctrine.

III. The New Federalism: A Constitutional (Counter) Revolution?

A. The New Federalism: A Brief Overview

"New Federalism" is not a new idea. President Richard Nixon referred to it frequently in articulating his plans for devolving to the states substantial authority in the administration of federal grant programs.60 During the 1970s, the Supreme Court articulated a form of "judicial new federalism" emphasizing, in cases such as Younger v. Harris,61 the respect due to state courts and the need to fashion federal jurisdictional doctrines accordingly.62 However, in current discourse, the term refers to efforts by a majority of the Supreme Court to emphasize concepts of dual federalism and the separate legal status of the constituent states within the American republic, as well as the effects of this doctrinal shift on national power.

This development's most important origin is the decision of the Burger Court in National League of Cities v. Usery.63 In that case, the majority attempted to articulate and utilize federalism-based limits on national power to invalidate an otherwise valid exercise of Congress's Commerce Clause authority to regulate wages and hours of state and local employees. The Court articulated such concepts as regulating the "states as states,"64 "attributes of state sovereignty,"65 and "areas of traditional governmental functions"66 as benchmarks for any such limitations. Nine years later, however, Garcia v. San Antonio Metropolitan Transit Authority61 overruled National League of Cities. Garcia essentially rejected the notion of judicially enforceable limits on the Commerce Clause and, adopting a view first propounded by Professor Herbert Wechsler,68 stated that the principal protection for the states' role in the constitutional system was to be found in the congressional legislative process rather than through judicial review.69 Garcia was certainly a setback for the new federalism, but because both it and National League of Cities were five-to-four decisions, the issue was far from closed.

Indeed, a federalist majority emerged to give the states some protection through statutory construction and the rule of "clear statement" six years after Garcia in Gregory v. Ashcroft.10 The utilization of statutory construction to further state autonomy can be viewed as a step toward re-establishing it as a constitutional construct. The technique permits the conservative Justices to find in favor of the states on nonconstitutional grounds while suggesting that a constitutional background that compels this approach to the statute in question exists. An important next step was the partial restoration of immunity from federal regulation through the "anticommandeering" principle articulated in New York v. United States71 and Printz v. United States.72 Those cases stand for the proposition that, even within its enumerated powers, Congress cannot impose duties on state legislative and executive branches. As for the basic existence of federal power, United States v. Lopez73 and United States v. Morrison74 held, for the first time since the early New Deal, that regulatory exercises of congressional power under the Commerce Clause were invalid. Although neither involved classic economic regulation of the New Deal variety, the symbolic importance of a brake on congressional power was great.

Another controversial area was the question of state immunity from citizen suits in federal courts on federal statutory claims. Relying heavily on notions of state sovereignty, the Court treated this immunity as a major attribute of the states' role in the federal system in cases such as Seminale Tribe of Florida v. Florida75 and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board.76 Much of the debate in these cases was a rehash of the debate over whether the Eleventh Amendment furnishes a constitutional basis for state immunity from such suits. The issue had periodically divided federalistic and nationalistic judges for a number of years.77 The cases brought to the forefront the question of Congress's power to abrogate whatever immunity states might enjoy. In Seminale, the majority overruled an earlier holding that Congress could do so under its Article I powers.78 The same majority later took a dim view of notions of waiver.79 Thus, for Congress to abrogate the states' Eleventh Amendment immunity, it would have to act under the powers granted by Section 5 of the Fourteenth Amendment. The Court had previously recognized that Congress had this power, relying in part on the notion that the Fourteenth Amendment brought about a substantial change in the underlying nature of federal-state relations.80 Thus, the Eleventh Amendment battleground shifted to Fourteenth Amendment abrogation at the same time as the Court was re-examining the broader issue of Congress's authority under Section 5.81 The net result was a series of Eleventh Amendment decisions fortifying limits that the Court seemed already prepared to place on Congress's exercise of this non-Article I power over states.

As this brief synopsis indicates, the new federalism cases cover a substantial range of ground and articulate a number of doctrines and concepts that, taken together, can substantially recast the nature of American federalism. Rather than analyze them further, I will let the Court speak for itself. The following discussion of key decisions gives the reader a sense not only of substance but also of rhetoric and symbolism in an area in which these two qualities have taken on substantial importance.

B. The New Federalism as Pronounced by the Court

Several major themes emerge from the cases decided over the last eleven years, beginning with Gregory v. Ashcroft.82 The first is that the courts can enforce limits on the national government and that these limits are based in federalism. This is an exceedingly important doctrinal development, given the basic premise of Garcia that such limits were unnecessary and unworkable. In Lopez, Justice Kennedy concurred, in part to emphasize the importance of the Court's willingness to find and enforce limits.83 He noted the argument that issues of federal and state power should be left to the national political process,84 but concluded that "the absence of structural mechanisms to require [national political] officials to undertake this principled task, and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role."85 For Justice Kennedy, "the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far."86 Both Justice Kennedy and Chief Justice Rehnquist acknowledged that a judicial role in preserving federalism limits on Commerce Clause authority would lead to "legal uncertainty"87 in some cases. They considered this an inevitable consequence of constitutional adjudication in this area, and each cited Marbury v. Madison88 for a recognition of the Court as the branch whose duty it is to declare "what the law is."89 As Justice Kennedy put it, "we are often called upon to resolve questions of constitutional law not susceptible to the mechanical application of bright and clear lines."90 Thus, an important component of the new federalism is the commitment to treat federalism-based constitutional adjudication as seriously as, for example, issues of individual rights.

A second important theme is that there is something for the Court to enforce. Limits on the power of the national government exist. This, of course, is the message of Lopez and Morrison, both of which found internal limits on the reach of the Commerce Clause.91 The two cases struck down legislation dealing with guns within school zones92 and civil remedies for gender-based violence.93 Chief Justice Rehnquist began the analysis of his Lopez opinion with the following observation: "We start with first principles. The Constitution creates a Federal Government of enumerated powers. See Art. I, 8. As James Madison wrote: 'The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.'"194 Particularly troubling to the majority in both Lopez and Morrison was the possible connection of virtually any activity to commerce, thus permitting the national government to regulate all aspects of American life through that power.95

The majority has also found external, federalism-based limits on national power. The best example is Justice O'Connor's majority opinion in New York v. United States.96 She viewed the constitutional structure as one which provides Congress with a certain amount of authority over individuals but not over states.97 She quoted The Federalist Papers for the following proposition: "[A] sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity . . . ."98 Her opinion reasoned that an effort to commandeer the state governments would run directly counter to this basic structural premise.99 New York involved what the majority saw as an effort to commandeer the state legislature.100 In Printz v. United States,101 the majority extended this principle to national efforts to commandeer the state executive branch for the administration of a federal program.102

Explicit in these analyses of the constitutional structure is a concept of divided sovereignty in which the states retain a substantial amount of power. Lopez enforces this notion by its emphasis on the Federalist concept of "nu-merous and indefinite" powers in the state governments. What Justice Kennedy saw as a threat in the Gun Free School Zone Act was a danger that the statute "upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power."103 He also sawthe statute as seeking "to intrude upon an area of traditional state concern."104 Obviously, concepts like the latter, which played a prominent role in National League of Cities, have undergone a substantial resurrection.

When they exercise their considerable array of powers, the states function as political entities. One of the themes of the new federalism cases has been the importance of preventing federal actions that blur the lines of accountability within these entities. In Lopez, Justice Kennedy enunciated a means of keeping the lines of accountability clear: preventing the federal government from taking over "entire areas of traditional state concern."105 In New York, Justice O'Connor emphasized the importance of having a state's citizens know whether their elected officials were attempting to follow the will of the voters or applying a policy imposed from above. Thus, "the residents of the State retain the ultimate decision as to whether or not the State will comply."106 In Printz, which involved administration of a gun control program, Justice Scalia pointed to the opportunities for officials at one level to take credit for "solving" a problem while constituents at another level must pay higher taxes.107 The Court's emphasis on accountability includes fiscal as well as policy choices. This emphasis has constituted an important theme in Eleventh Amendment jurisprudence, questioning the desirability of federal instrumentalities imposing large fiscal burdens on states when their citizens might choose to expend the funds elsewhere.108

Indeed, the Court has gone beyond treating states as political entities to the point of referring to them repeatedly as sovereigns. Gregory represents an important step: "Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign."109 New York referred to "the sovereignty reserved to the States by the Tenth Amendment,"110 and asserted that "[s]tate sovereignty is not just an end in itself,"111 noting the importance of federalism as a means of protecting individual liberties.112 In Printz, Justice Scalia returned to the theme, viewing it as "an essential attribute of the States' retained sovereignty that they remain independent and autonomous within their proper sphere of authority."113 This emphasis on the status of states appears to reach its full development in the Eleventh Amendment cases. In Seminole Tribe of Florida, Justice Rehnquist stated as a fundamental premise of Eleventh Amendment jurisprudence "that each State is a sovereign entity in our federal system."114 College Savings Bank takes the point one step further by treating the state's sovereign immunity as a "constitutional right."115

In Alden v. Maine,116 Chief Justice Rehnquist trotted out a familiar metaphor to describe the place of states within our federal system:

When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate states.117

The reference to "esteem," which apparently follows from their sovereign status, is an example of the current majority's emphasis on showing "respect" for states. The Court's most recent statement on the subject highlights this dimension of dual federalism: "While state sovereign immunity serves the important function of shielding state treasuries and thus preserving the States' ability to govern in accordance with the will of their citizens . . . the doctrine's central purpose is to accord the states the respect owed them as joint sovereigns."118

The Justices supporting these various new federalism initiatives take care to tie them to broader questions of the purposes of federalism. An obvious example is the role of states as "laboratories," invoked by Justice Kennedy in his Lopez concurrence.119 However, the central theme is the Framers' intentional division of governmental power into two distinct, inde-pendent spheres, each with the ability to compete with the other, thereby preventing tyranny and enhancing the liberty of citizens. Far from a potential infringement on individual rights, federalism is presented as a central means of achieving them. The following statement from Justice Scalia's opinion in Printz, with its reference both to The Federalist Papers and Justice Kennedy's oft-cited concurring opinion in U.S. Term Limits, Inc. v. Thornton,120 summarizes these themes well:

The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people . . . . The great innovation of this design was that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other-a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens.121

Continued from page 4.

If all of this sounds too good to be true, perhaps it is. Each of the opinions quoted above provoked one or more strong dissents by "liberal" members of the Court.122 The critiques of the majority in these opinions are wide ranging, including incorrect history, improper methodology, and insufficient respect for the role of Congress.123 The dissents of Justices Souter and Breyer in Morrison are particularly relevant. For the former, the Court is attempting in vain to restore "the Federalism of some earlier time,"124 a goal that cannot be achieved through constitutional interpretation. Justice Breyer appears to take the analysis one step further, suggesting that federalism itself is not only irrelevant but also has all but disappeared: "We live in a Nation knit together by two centuries of scientific, technological, commercial, and environmental change."125 Justice Breyer was arguing the futility of imposing boundaries through the Commerce Clause, particularly because it touches upon a subject which highlights the interdependence of contemporary society.126 However, his observations suggest that the entire new federalism project is doomed to failure because its fundamental core-separate and independent states-no longer retains validity.127 Perhaps the majority is, in fact, tilting at windmills. Still, it seems to have knocked quite a few of them down. The new federalism cases have had a definite theoretical impact on the relationship between the two governments. In the remaining Parts of this Article, I will apply new federalism precepts to the highly visible practice of federal prosecution of state and local officials for political corruption.128 Before turning to that subject, however, I wish to examine briefly the voluminous academic commentary that the cases discussed above have generated.

C. The New Federalism as Seen by the Academy

As the saying goes, many trees have been felled to support articles analyzing what the Court has done over the last decade to redefine American federalism. The commentaries run the gamut of perspectives, from viewing the decisions as "revolutionary"129 to taking the position that the new federalism is not a major change, but should be seen as more of a tinkering with the status quo, which remains basically intact.130 Needless to say, much of the analysis is highly critical. For example, in an article partially entitled The Hypocrisy of Alden v. Maine,131 Professor Chemerinsky asserts that the Court has rendered to the states power over the individual analogous to that enjoyed by the Soviet Government under the Stalin-era Constitution.132 None of the major articles appears to address the issue of federal prosecutions of state and local officials for political corruption. I find this a surprising omission. Nonetheless, some analyses are particularly helpful in addressing the issues of states as polities and the ability of the national government to reach the manner in which those polities interact with their citizens.

Professor Daniel Farber notes the Court's "reverential language"133 toward the states that I have referred to above in connection with the concept of sovereignty. He views a principal goal of the new federalism as establishing the position of the states as republics.134 Within their allotted sphere, these republics will function as co-sovereigns with the national government. Professor John O. McGinnis has elaborated on the division of responsibility and the role of the states (and localities) in a "certain sphere of non-economic matters, such as criminal law and human rights."135 The national government remains supreme in economic matters, perhaps reflecting the view that when the national government regulates "activities having spillover effects among the states," it furthers efficiency.136 Outside of this realm, Professor McGinnis posits a model in which the states compete with each other and encourage active citizen participation in making the relevant policy decisions.137 "Thus, the Court is responding to the danger of mass apathy and interest group politics by making state citizens more responsible arbitrators of their own affairs."138

These latter analyses of the status of states within the new federalism are similar to Professor Deborah Merritt's earlier hypothesis of a developing "autonomy model" of federalism.139 However, the defenders are usually quick to point out that the states do not get carte blanche. Not only does Congress remain supreme in regulating the national economy, but also the dormant Commerce Clause shows that the Court can utilize the Constitution to mount strong limits on state authority in order to further the national interest.140 As Professor Farber asserts, "the Court views the federal system as one where federal law is paramount within its sphere, but with implementation mechanisms that are tempered by an appreciation for the state role in the system."141

Even Professor Steven Calabresi, who had described the recent decisions as "revolutionary,"142 views current doctrine as essentially "a mild corrective to a half-century of steady and sometimes ill-considered expansions of national power."143 Thus, one might analyze Lopez not as an attempt to roll back the Commerce power, but rather as an attempt to prevent it from becoming all embracing.144 This is certainly what Chief Justice Rehnquist said he was doing, both in terms of utilizing existing precedent and expressing disagreement with nationalist logic that knows no stopping point.145

The commentators have devoted considerable attention to the manner in which the new federalism might affect the national government's ability to reach the manner in which its co-sovereign states treat their citizens. The driving force here is concern over preserving the federal government's historic role as protector of civil rights. For example, Professor Calvin Massey asserts that there will be no effect on this role, particularly on enforcement by the Court.146 The position of Professor McGinnis on this matter is particularly interesting. He includes human rights as an area in which the states have room for some experimentation, but stresses the guarantee of a core of constitutional rights through Fourteenth Amendment doctrine.147 Indeed, he goes beyond federal enforcement: "The national government can enforce a threshold level of enforcement by authorizing actions against state officials for enforcement failures."148 This backstop role might cover not only failure to enforce nationally guaranteed rights, but could conceivably extend to those created by the states themselves.

Most analysts appear to be discussing civil rights within a relatively traditional framework. They are sharply at odds, and not all of them share Professor Massey's optimism. Professor Michael Crusto contends that the danger of the new federalism is that it may strengthen state majorities to the point at which they can substantially oppress minority and civil rights.149

Echoes of Madison's concern about diluting the tyranny of factions in the larger nation are part of the analysis. Professor Crusto views the current decisions as part of the Court's general anti-rights agenda which could lead to a pre-Brown constitutional stance.150 Like other commentators, Professor Rebecca Zeitlow notes the apparent paradox of a deferential approach to the congressional spending power within an overall federalistic doctrine intended to limit Congress's ability to regulate states.151 She sees the continuation of spending power doctrine as crucial to the maintenance of a strong national role in protecting civil rights, especially if federal power under Section 5 of the Fourteenth Amendment is contracted.152 Other analysts suggest that the civil rights area will remain an important realm of national authority. Professor Fallon stresses the Court's respect for precedent and its desire to avoid the embarrassment caused by its resistance to the New Deal.153 Professor Farber sees defending constitutional rights from either level of government as part of the current Court's vision.154

Clearly, for most analysts, the new federalism decisions represent an important development, although they disagree on its content, significance, and validity. Let us assume, nonetheless, something close to a consensus that the states, under emerging doctrine, will play a more meaningful role, somewhat as equals with the national government. The economic authority of the latter is not disputed. What is in question is the national government's role in overseeing the manner in which states protect their citizens. The commentators have focused on civil rights. Prosecuting state and local officials for corrupt government acts may seem far removed from this arena, but there are a striking number of similarities. For example, the prosecutions represent a national intervention to correct mistakes by government officers that have hurt citizens, at least indirectly. Civil rights and "good government" might both be part of a national protective role. Can one reconcile the prosecutions with the new federalism? The next Part develops the hypothesis that one cannot and that the two phenomena are fundamentally at odds.

IV. The New Federalism and the Prosecutions: A Fundamental Inconsistency?

A. The Pre-New Federalist Critiques

As early as the 1970s, observers of the criminal justice system began to question the expanding prosecutions of state and local officials.155 To some extent, any such critiques might be viewed as part of the general debate over the existence and scope of federal criminal law-a debate that remains intense today.156 The early federalism-based criticisms of the corruption prosecutions are important in and of themselves and form an important backdrop for a new federalism-based critique. One of the first articles to deal with these issues was the late Charles Ruff's examination entitled Federal Prosecution of Local Corruption: A Case Study in the Making of Law Enforcement Policy.157 Professor Ruff used the expanding interpretations of the Hobbs Act as a point of departure to examine the general phenomenon of corruption prosecutions.158 He devoted much of his analysis to the rapid growth of this body of law and the role of individual federal prosecutors in both guiding and utilizing it.159 However, he also placed some emphasis on the federalism problems that the prosecutions created.160 For example, he stated the following:

[G]ranting that it is detrimental to the interests of the citizens of a state for their elected or appointed officials to breach the trust reposed in them, these interests would be served better by effective state enforcement than by reliance on the federal government for remedial action.161

He also quoted extensively from the oft-cited case from the U.S. Court of Appeals for the Seventh Circuit, United States v. Craig,162 in which the court invoked "the federal nature of the American system of government"163 to call attention to the potential dangers of federal prosecution of state legislators. In the view of the Seventh Circuit, while the United States Attorneys may prosecute local officials who violate federal law, "the primary responsibility for ferreting out their political corruption must rest, until Congress directs otherwise, with the State, the political unit most directly involved."164

The year after the Ruff article, a student note, using the growing number of mail fraud prosecutions as a point of departure, asked whether such actions by the federal government constituted Creative Prosecution or an Affront to Federalism?165 The author recognized the relationship between the corruption prosecutions and the broader issues triggered by the debate over federal criminal law.166 He articulated the concept of "a special state interest" that might be present beyond the state's "traditional role of administering criminal justice" as a deterrent to federal action.167 In his view, corruption prosecutions represented a clear example:

The policing of a state government's own political system would seem to be such a special state interest. The duty owed the state and its citizens by an elected official is fiduciary in nature, a special duty of honest and faithful service. Insuring the performance of this duty is best left to its beneficiaries-the people and government of the state. Indiscriminate intervention by the federal government may dampen not only internal state efforts at reform, but also the special rapport necessary between an elected representative and his constituency. Elected state officials increasingly may gauge their activities by the federal standard rather than that imposed by their constituents. The people, moreover, may rely increasingly on the federal prosecutor to turn the rascals out.168

Like other analysts, the author focused on the dramatically expanded and highly visible role of the federal prosecutor, citing well-publicized corruption cases that had increased the stature of prosecutors such as United States Attorney James Thompson in Chicago.169 "The dangers of this activist approach are twofold: It legitimatizes the United States Attorney as a political actor, and advocates a broad unchecked use of discretion."170

Five years later, Andrew Baxter authored a comprehensive study of Federal Discretion in the Prosecution of Local Political Corruption.171 He began by arguing that the statutory interpretation developments discussed earlier in this Article172 stretched the federal laws far beyond their original intent.173 He saw both a danger to the federal-state balance in criminal law and a dramatic increase in the discretion and power of individual federal prosecutors.174 He posited a general "state interest in law enforcement autonomy" which seems "especially compelling in the context of local political corruption."175 He dealt with the problem of states' inability to prosecute their own officials some of the time.176 He admitted the possibility, noting that it could hinder the enforcement of both state and federal law, but argued that federal prosecutors are too quick to find state or local lack of capacity.177 He argued for action at all levels of the federal government to limit prosecutorial discretion.178

A pair of important articles in the early 1990s continued the pre-new federalism critique in the context of both the mail fraud statute and Congress's endorsement of its exponential growth in overturning McNally. Professor, later Dean, Gregory Howard Williams analyzed Good Government by Prosecutorial Decree.179 He first discussed the problem of prosecutorial discretion in administering a broadly drafted statute.180 Turning to issues of federalism, he expressed a certain ambivalence based on his perception of the need for the national government to play something of a backstop role.181 Williams thought any debate over federal intervention should include:

[C]onsideration of the state's interest in controlling its own political forums. States should have the opportunity to act against local corruption and legitimate themselves before the federal government intercedes. This does not mean there is not an appropriate federal role in controlling corruption nationwide, but states' efforts to police public corruption should be recognized and encouraged. In fact, many states have grappled with thorny questions surrounding bribery and corruption.182

Williams thus questioned the assumption that states cannot or will not deal with the problem and advocated a federal prosecutorial role that keeps state concerns in the forefront. He predicted an increasing debate about the national role in "establishing ethical standards for the states" and insisted that in any such debate "there is a special need to respect governmental boundaries and limit the intrusiveness of the federal government into state matters."183 For Williams, as for the other critics, the fact that corruption was involved was an argument for less federal involvement.

More recently, Professor Geraldine Szott Moohr offered a particularly trenchant analysis of the same statute, entitled in part Someone to Watch Over Us.184 She discussed issues of drafting, vagueness, and prosecutorial discretion as well as separation of powers problems, given the extensive power placed in the hands of judges and juries.185 However, she also devoted considerable attention to federalism.186 She invoked values such as decentralization and government responsiveness to citizens. Under her analysis, the corruption prosecutions impair federalism in several ways. In particular, she discussed their impact on the concept of accountability and on the important value of encouraging maximum state and local government responsiveness to citizen desires.187 According to Professor Moohr,