Due Process of Lawmaking Revisited

Abstract

Due to the role of ultra-wealthy party donors in its enactment, the recent Republican tax law can be seen as a case study in the systemic corruption of Congress that has concerned many commentators. For the most part, the solutions they have offered have been political in nature. In the short-term, the unpopularity of measures that so disproportionately benefit the very few will likely impose electoral costs that no party can continue to bear. In the longer term, congressional action or constitutional amendment is required to radically reform the current system of campaign finance. Regardless of the prospects of such future political responses, is there a legal solution in the here and now that might be able to deal with any part of the problem the critics have identified? This Article suggests there is. Beyond the very limited scope and deterrent value of the criminal law of bribery, it proposes an independent constitutional response in the form of the Due Process Clause of the Fifth Amendment. Federal statutes that are enacted by means of illegitimate procedures, including the paying or withholding of donations for votes, violate the constitutional requirement of due process in lawmaking and should be invalidated by the courts, whether or not such conduct is, or could be, the subject of a successful criminal prosecution.

Keywords: due process, legislative procedures, tax law, corruption, campaign finance