A decade ago, if a politician had argued before the Supreme Court that he had a First Amendment right to trade political favors for a Rolex watch, his lawyers may have feared for their professional reputations. But that argument is one basis for ex-Virginia Governor Bob McDonnell’s appeal of his eleven-count corruption conviction in McDonnell v. United States, which the Court hears in oral arguments on Wednesday.
The case demonstrates how the First Amendment has begun to evolve from a tool to protect Americans with unpopular beliefs into a shield used by corporations and political donors to justify rules-free policymaking and electioneering.
The McDonnell case turns on a question vital for the future of our democracy: Should the First Amendment be read as a blunt instrument that protects the buying of government access, or as a safeguard to ensure that Americans may speak freely and effectively oversee their elected representatives? In recent years, the Court has often decided such questions on a 5-4 vote. Now evenly divided in the wake of Justice Antonin Scalia’s death, the Court may deadlock on this and similar issues in the near term. But the Court’s eventual answer will profoundly impact whether American voters have a meaningful say in the actions of their elected officials.
McDonnell’s bribery charge centered on his receipt of about $175,000 in cash and gifts from businessman Jonnie Williams. Aside from the Rolex, Williams gave McDonnell and his wife several large loans, payments for their daughters’ weddings, and a shopping trip to Bergdorf Goodman. The jury found that in exchange, McDonnell tried to help Williams and his company, Star Scientific, promote a dietary supplement called Anatabloc. Williams had wanted Virginia’s public universities to perform costly studies on Anatabloc that could lead to its approval by the FDA. The governor and his wife directed staff to set up meetings between Williams and state employees, and hosted the launch of Anatabloc at the Governor’s Mansion. At one point, McDonnell had even pulled a bottle of Anatabloc from his pocket and pitched it to the state’s secretary of administration, who controlled the state employee health plans.
At trial, McDonnell claimed that his support for Anatabloc was unrelated to Williams’s gifts. But the jury disagreed. Among other pieces of evidence, jury members learned that six minutes after e-mailing Williams about the status of a $50,000 loan, McDonnell had texted an aide about the proposed Anatabloc studies. The jury heard testimony that Maureen McDonnell told Williams, “The governor says it’s okay for me to help you … but I need you to help me.” The jury convicted McDonnell under several federal laws that punish the exchange of money for official government acts.
McDonnell and his supporters argue that even if he did help with Anatabloc in exchange for Williams’s gifts, the First Amendment protects his conduct—Williams’s gifts were simply buying access to the government, letting him make his case for a project that did not ultimately succeed. McDonnell points to the Supreme Court majority’s holdings in two recent campaign-finance cases—Citizens United v. FEC and McCutcheon v. FEC—that narrowed the definition of corruption. In McCutcheon, the Court identified “only one legitimate governmental interest for restricting campaign finances: corruption.” In both McCutcheon and in Citizens United, which invalidated limits on political spending, the Court concluded that “ingratiation and access … are not corruption.”
McDonnell’s free-speech argument shows how thoroughly the First Amendment has been reinterpreted in recent years. In the mid-20th century, the amendment often protected dissidents and religious minorities from government persecution. Now, it’s frequently invoked by business interests to accomplish goals such as establishing the right of corporations to spend unlimited amounts in elections, or preventing the government from requiring graphic warning labels on cigarette packaging. Indeed, a 2015 paper by Harvard Law professor John Coates argued that “corporations have begun to displace individuals as the direct beneficiaries of the First Amendment.”
In his appeal, McDonnell asks the Court to continue and build on this trend by holding that his exchange with Williams was protected by the First Amendment. Unfortunately, there is no straightforward formula that dictates how the Court should respond to cases like this, because the First Amendment is not absolute. No serious litigant would argue that the prohibition of laws “abridging the freedom of speech” prevents all government limits on speech or writing. Verbal threats may be punished by the government, even if they are not accompanied by physical action. Likewise, American courts set a page limit on court papers, which applies to a criminal defendant even if he has the means to pay his lawyers to write briefs twice as long as the prosecutors’.
Thus, the Court must decide whether punishing Williams’s gifts to McDonnell serves an interest that overrides any infringement on his free-speech rights. In Citizens United and McCutcheon, the Court has seemed to conclude that that limits on political spending impermissibly infringe on the freedom of speech unless they prevent quid pro quo corruption, by which the Court may simply mean bribery. The Roberts Court has decided that most political spending does not create a threat of bribery, and has promoted the value of completely unencumbered political messaging.
McDonnell’s lawyers hope the Court will further narrow this already myopic view of the First Amendment’s purpose; they argue that the amendment protects an individual’s unfettered right to disseminate a message no matter the means or the consequences. Yet that view ignores the First Amendment’s greater purpose, which is to guarantee a democracy in which elected officials respond to the words and desires of their constituents.
If certain speakers dominate the political debate, and oft re-elected incumbents respond principally to the speech of those few people, the First Amendment cannot do its job of amplifying the voice of average Americans. In other words, McDonnell’s interpretation puts the supremacy of an instrumental right before the edifice it was meant to preserve. If the First Amendment protects a businessman who buys a direct line to the governor that no other Virginian has, is it protecting a democracy in which the people, as a whole, have ultimate control over their collective decision-making?
This trees-versus-forest interpretation of the First Amendment crops up in several cases that examine how our government works, and the outcome will have profound effects on the country’s future. For example, corporations and others seeking to further deregulate campaign financing have claimed a First Amendment right to spend money anonymously for political causes. Plaintiffs in California who supported Proposition 8, which outlawed gay marriage in the state, sought to avoid disclosing their spending in support of the initiative, claiming fears of reprisal by the public, such as boycotts of their businesses. In making this argument, they relied on a 1958 case in which the Supreme Court held that the NAACP did not have to disclose its members to the state of Alabama, citing the members’ fear of threats and hostility. Courts hearing such cases must decide whether to conceive of the First Amendment narrowly, to protect only campaign spenders, or more broadly, to foster the disclosure of information that helps voters accurately assess candidates and ballot questions.
The Court’s decision in McDonnell will decide whether one man goes to prison. But more importantly, it may tell us whether the Court views the First Amendment principally as a means for the powerful to sidestep legal obstacles, or as a fundamental protector of the people’s right to govern themselves.