Is Federalism Corrupting the Corruption Convention?

In an issue near and dear to my heart, the Senate continues to demonstrate its willingness to defer to the Executive Branch on questions of when and how federalism should limit U.S. treaty-making. Last week, the Senate gave its advice and consent to the U.N. Corruption Convention. This multilateral treaty, which entered into force generally in December 2005, obligates states parties to take measures to prevent corruption from occurring within their national systems and to cooperate with other states in the investigation and prosecution of corruption-related offenses. Most importantly, the Convention obligates states parties to harmonize their corruption laws by requiring them to criminalize certain defined offenses involving a wide range of acts of corruption (e.g., bribery, embezzlement, trading in influence, concealment, money-laudnering). [Update: Actually, as an astute reader points out, the Convention only obligates states parties to criminalize bribery of national and foreign public officials; embezzlement by a public official; money laundering; and obstruction of justice; the Convention only encourages parties to criminalize trading in influence, abuse of functions, illicit enrichment, embezzlement in the private sector, and concealment.]

The Senate’s advice and consent was subject to the following reservation:

(1) The United States of America reserves the right to assume obligations under the Convention in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to the conduct addressed in the Convention. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, serves as an important component of the legal regime within the United States for combating corruption and is broadly effective for this purpose. Federal criminal law does not apply where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are conceivable situations involving offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation under the Convention. Similarly, in the U.S. system, the states are responsible for preventive measures governing their own officials. While the states generally regulate their own affairs in a manner consistent with the obligations set forth in the chapter on preventive measures in the Convention, in some cases they may do so in a different manner. Accordingly, there may be situations where state and federal law will not be entirely adequate to satisfy an obligation in Chapters II and III of the Convention. The United States of America therefore reserves to the obligations set forth in the Convention to the extent they (1) address conduct that would fall within this narrow category of highly localized activity or (2) involve preventive measures not covered by federal law governing state and local officials. This reservation does not affect in any respect the ability of the United States to provide international cooperation to other States Parties in accordance with the provisions of the Convention.

This language was taken word-for-word from the language proposed by President Bush in transmitting the treaty to the Senate. The Senate also attached several understandings to its resolution of advice and consent (including a non-self-executing understanding for those who are interested in such things). For my purposes, however, I was struck by the following declaration:

The United States of America declares that, in view of its reservations, current United States law, including the laws of the States of United States, fulfills the obligations of the Convention for the United States. Accordingly, the United States of America does not intend to enact new legislation to fulfill its obligations under the Convention.

This, too, although slightly different in formulation, replicates a proposed understanding from the Executive Branch.

Now, the reservation does not state that federalism requires the United States to decline obligations out of deference to states’ rights; it’s more descriptive in tone. But, at the same time, I find the import of the reservation and understanding significant, particularly emerging as they do from within the Executive Branch. To me, they represent an effort by the Executive–the very holder of the treaty power–to deny the full extent of that power (as articulated by Chief Justice Holmes in the seminal case of Missouri v. Holland) on the grounds of states’ rights. The Corruption Convention federalism reservation will ensure that implementation of the treaty obligations accords with Congress’s legislative power under the Commerce Clause as opposed to resting solely on the treaty power itself. Under this treaty, the United States will only assume obligations to criminalize conduct Congress already had the power to criminalize. Second, even where Congress can use its legislative power to criminalize conduct, the declaration makes clear that the Corruption Convention does not provide Congress any incentive to do so. Thus, it reflects the shared understanding of the President and Senate that the Corruption Convention’s criminalization obligations maintain the status quo, preserving existing federal and state criminal laws.

Moreover, this federalism reservation and declaration come on the heals of similar language proposed by the Executive and adopted by the Senate for the UN Convention on Transnational Organized Crime(TOC Convention). Thus, these most recent conditions demonstrate that this Administration has decided on an open and consistent approach to invoking federalism as a limiting principle for U.S. treaty obligations.

Now, I’ve written about the domestic constitutional implications of an Executive Branch providing internal federalism safeguards in a forthcoming Southern California Law Review article (download it here). But, what I’m wondering about today, is how other states will react to this now-apparent pattern of activity (in addition to the TOC Convention, the U.S. did something similar in the Cybercrime Convention, but only after careful negotiations with the French and other parties over the resevation’s form and scope). After all, when, in the 1950s and 1960s, the United States and other federal states sought federalism clauses in treaties–allowing differentiated obligations for federal and non-federal states–non-federal states reacted with some hostility (see, for example, Art. 50 of the ICCPR, which was in reaction to a US proposal for a clause that would’ve allowed federal states to decline obligations on federalism grounds). Ultimately, the practice of federalism clauses faded away. So, it will be interesting to see how other states respond, if at all, to the latest Executive efforts to invoke federalism to avoid specific treaty obligations. Do they take the Executive Branch at its word and view these reservations as “minor” deviations from the treaty text, or do they object on principle to the idea that a federal state’s structure should enable it to avoid treaty obligations enitrely or assume lesser obligations than those imposed on non-federal states?