Congress's habit, when confronted with anything that its Members
dislike, no matter how trivial, is to write a new criminal offense.
The latest example is particularly egregious: A new bill introduced
by Senator Diane Feinstein (D-CA) would criminalize the sale of
inaugural tickets, which are handed out for free by congressional
offices. The measure, according to reports, may win passage under
expedited procedures, without any debate or deliberation.
This sort of knee-jerk criminalization has led to the
proliferation of criminal offenses--4,500 in federal statutes,
alone. This broadening of the criminal law, to the point that any
person is probably guilty of some federal crime, cheapens the
notion of crime and reduces the law's deterrent effect. The
criminal law is simply the wrong tool to enforce regulation of
productive economic conduct, and Congress should avoid making
matters worse by creating still more criminal offenses targeting
behavior that, though disliked by lawmakers, is simply not
criminal in nature.
A Hot Ticket
Since President-elect Barack Obama clinched the presidency on
November 4, congressional offices have been flooded with phone
calls and e-mails requesting tickets to his inauguration in
January. Some offices report receiving upwards of 10,000 calls from
constituents seeking one of the 240,000 tickets to Obama's swearing
in. Each office, however, will receive only 198 tickets to
distribute to the public--at no charge. Some offices promise to
stage raffles for the tickets, while others are handing them out to
supporters or on a first-come basis. Individuals who are unable to
obtain tickets will have to settle for watching the ceremony from
the National Mall or on television.
With this great chasm between supply and demand, as well as the
enthusiasm many harbor for Obama, it should come as no surprise
that some are willing to pay exorbitant sums to watch the
swearing-in ceremony up close. According to news reports, tickets
have been advertised online for $5,000 to $40,000 apiece, and some
have even found buyers at those exorbitant prices. This market's
rapid emergence is a stunning reaffirmation of the simple law of
supply and demand.
But it has also proven offensive to some Members of Congress.
Last week, Feinstein issued a statement labeling such ticket sales
"unconscionable" and demanding that they "must not be allowed."
Calling the inauguration "one of the most important rituals in our
democracy," Feinstein maintains that "the chance to witness this
solemn event should not be bought and sold like tickets to a
football game." The tickets, she said, are supposed to be free, and
allowing sales would deprive party volunteers, schoolchildren, and
"members of the African-American community" the chance to see the
In response to pressure from Feinstein, several Internet sites
have already pulled inaugural ticket sales and halted auctions and
are forbidding the posting of new ones. Nonetheless, a cursory look
shows that tickets remain on sale on many websites. As tickets will
not be distributed until just before the inauguration, some of
these listings may be fraudulent, which is also among Feinstein's
No new law is needed, however, to prevent fraud, which is
already a criminal offense many times over. A new statutory offense
prohibiting fraud in inaugural ticket sales would do no more than
duplicate these existing prohibitions in that context, while adding
to the clutter of Title 18 of the U.S. Code, where most criminal
offenses are located.
And it is difficult to imagine, in any case, what good banning
the legitimate sale of inaugural tickets would accomplish. Contra
Feinstein, a ban would not prevent any schoolchild,
African-American, or Obama volunteer who obtains a ticket from
witnessing the ceremony. Instead, it would give those individuals
an additional choice: the opportunity, if they so choose, to sell
their ticket and reap the rewards. When transactions such as these
are not coerced, they are mutually beneficial--that is, each side
winds up better off. So a college-age volunteer in dire need of
cash could sell her ticket to an Obama supporter who lost her
delegation's lottery but wants nothing more than to see her
candidate sworn in. By prohibiting sales, Congress would actually
leave ticket recipients worse off.
Law Loses Its Moorings
But if Members, for whatever idiosyncratic reasons, find the
idea of paying for admission to an event to be offensive, there are
more straightforward means to prevent it than a criminal
prohibition. The easiest is simply refusing to admit individuals
whose names do not match those printed on the tickets, just like
with voter identification requirements in several states, which the
most recent election proved to be efficient, effective, and no
deterrent at all to legitimate participants. Anyone who has ever
attended a concert or other ticketed event can recall other means
of limiting access to those who obtained tickets directly from the
Given that these other means exist, Congress should not misuse
the criminal law to carry out this end. Putting a ticket up for
sale lacks an essential component of most criminal offenses, as
they have traditionally been defined: an actus reus, or bad
act. Traditionally, acts deemed criminal were wrongful in and of
themselves, like theft and murder.
Only in recent decades have we witnessed an explosion in the
number of acts that are not wrong because of their intrinsic
nature--that is, they do not cause actual harm to others or
otherwise violate society's basic mores--but merely because they
have been designated as such by a legislature. These offenses are
known as "malum prohibitum," or acts that are wrong merely
because they are prohibited. A big problem with malum
prohibitum offenses is that they provide no intrinsic notice to
individuals that certain conduct is illegal, and that is an
especially significant concern when the criminal code has swollen
to contain thousands of offenses.
Arbitrary offenses like the sale of inaugural tickets also
distance the criminal law from its moral roots. If selling a
legitimate ticket is a crime with the same penalty as, for example,
theft or actual fraud, the criminal law becomes divorced from the
notion of actual harm and is cheapened for it. As Professor John
Coffee has explained, the criminal law's greatest strength is in
its power as a system of moral education and socialization, both
reflecting and establishing the norms that undergird society. This
law is followed not merely for the legal threat underlying it but
for the reason that people consider it to be a legitimate statement
of their rights and responsibilities. As Coffee puts it, "the
criminal law is a system for public communication of values."
Is it really among our values that tickets to an inauguration
should never be sold or that money is not an appropriate measure of
the value to a person of attending a historic event? Of course not.
Since this nation's founding, people have paid money to attend
events that offer personal and historical value and, if the ads on
Craigslist (an online marketplace) are any indication, will pay
thousands on room and board to spend inauguration week in D.C.--if,
that is, they can obtain tickets.
Congress can certainly ban ticket sales if it wishes, but in
achieving such a narrow objective, it should avoid making our
already unruly criminal law even worse.
Andrew Grossman is
Senior Legal Policy Analyst in the Center for Legal and Judicial
Studies at The Heritage Foundation.