Constitutional Conflict? Not to Worry

A person convicted of a felony for giving or accepting a bribe, or stealing or embezzling public funds cannot be a candidate for state or local office under a new law signed July 24 by Gov. Jerry Brown.

 “The intent of this bill is to create accountability and ensure that we are setting a high ethical standard for those seeking to represent Californians by running for public office,” said Assemblyman Felipe Fuentes, a Los Angeles Democrat who authored the measure, AB 2410.

“Malfeasance, deception and misconduct exist in all levels of government and this legislation will send a strong message to those seeking to use public office for personal gain.”

Well, to some of them.

The original version of the bill, as passed by the Assembly, imposed a 20-year ban on running for office after conviction for such felonies. It also applied the prohibition to federal office holders.

The June 25 Assembly Floor analysis of the bill notes that the Senate made two changes to the measure.

One, the 20 year ban became a lifetime ban. And, two, federal elected officials were exempted.

“This ensures the bill does not conflict with the United States Constitution which does not prohibit felons from holding elected federal office and prohibits states from adopting qualifications for federal candidates,” the analysis notes.

The May 1 analysis of the bill by the Assembly Elections and Redistricting Committee says plainly that the measure conflicts with the US Constitution.

Apparently Assembly members considered that to be a minor glitch, rectified, if necessary, in the upper house at some later date.

Elsewhere in the Assembly committee analysis it says, in far more polite terms, that there’s really no reason for the bill anyway.

“There are laws in place that prohibit nefarious actions on the part of elected officials.  Should the electorate find itself unsatisfied with the actions of their elected official, voters have procedures available to make changes. 

“For instance, the constitution provides the electorate with the power to recall and remove any state or local elected official before their           term has expired.  A prime example of this occurred in 2003, when former Governor Gray Davis was successfully recalled.” 

Indeed, the analysis goes on to say, California’s own constitution requires that “laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office or serving on juries.”

Those laws are enumerated in both the Penal Code and the Government Code, according to the analysis.

“While the author has provided anecdotal evidence to suggest current law is insufficient in its ability to deter such behavior from California’s elected officials, no empirical or statistical evidence was presented to the committee. 

(Emphasis added.)

“Moreover, the committee is unaware of any information that demonstrates convicted felons are being elected to office in California. The lack of evidence may demonstrate that California voters are not electing convicted felons as their representatives and consequently question the need for this bill. 

(You think?)

“The committee may wish to consider whether this is a widespread problem in California and whether the proposal is necessary.”

Committee members apparently didn’t consider that seemingly threshold question.

They sent the measure to the floor on a unanimous bipartisan vote where it was, in turn, sent to the Senate on a unanimous bipartisan vote, its conflict with the US Constitution intact.

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