Text sets WRTL free

Let's close the loop on the WRTL bribery thing. Tom Foley does respond to the points I made and I give him credit for that. I wish he'd do more of it. But the characterization of my interpretation of the statute as "extra textual" is wrong.

Textualism says that one ought to be limited to the text of a law when attempting to ascertain its meaning and application. One ought not to refer to extrinsic sources like legislative history or resort to the interpreters view of what meaning constitutes the best policy - unless that meaning is fairly inferable from the text.

That does not mean that one ignores the structure of the text or whether a particular way of reading it leads to obviously absurd or potentially unconstitutional results. Language is often ambiguous in its application and being a textualist does not mean that one ignores that. Over the years, lawyers have developed a number of guides to construction. For example, there is a long tradition of construing statutes to avoid constitutional difficulties.

Here, the statute says that a thing of value may not be offered or given to an elector or other person in order to induce an elector to vote or refrain from voting. The object of the inducement is the elector. The offer or gift must operate as an inducement to him or her. Mr. Foley wants to read it to say that this thing of value may not be given to another person to induce that person to do something (knock on doors, make phone calls, collect absentee ballot applications)that causes or helps an elector to vote.

That's not what the law says. The offer or gift must operate as an inducement to the elector (elector being the direct object of the verb) and not as an inducement to someone else to do something that might result in the elector voting.

That interpretation is based entirely on the text. It is not, as I noted before, "extra textual" to test that interpretation by asking what Mr. Foley's construction would mean. The results are absurd and would, I think, render the statute unconsitutional.

And, if that's not enough, two more reasons that the law cannot be read in the way that Tom wants. There is also a rule of construction that criminal statutes be interpreted narrowly. Tom's interpretation is, shall we say, rather expansive.

Finally, it is not inconsistent with a textualist approach to consider the intent of the statute as expressed by its text (as opposed to some extrinsic source). One has to be careful that one is not substituting one's preferences for the enacted law, but it, in this case, consideration of intent confirms what the plain language of the text says - the offer or gift must be an inducement directed to the elector. What the statute seems to be aimed at is bribing electors, i.e., "buying" their franchise. An offer or gift that induces someone else to do something - even if it results in an elector casting a vote - does not do that.