Reformers Sound Alarm: McDonnell Ruling Invites Corruption
By Justin Miller | Jun 27, 2016
Good-government advocates voiced alarm Monday that the Supreme Court’s unanimous ruling to overturn former Virginia Governor Bob McDonnell’s 11-count corruption conviction will pave the way for the wealthy and powerful to more brazenly wield influence in government.
“By saying that politicians can receive gifts in exchange for political favors, the Supreme Court has enshrined bribery into our politics and further empowered moneyed interests over ordinary citizens,” Zephyr Teachout, a corruption expert and Democratic congressional candidate in New York, declared in a statement.
The Court concluded Monday that the prosecutor had too broadly defined what constitutes bribery of a public official. McDonnell, a Republican, had been convicted of accepting gifts and loans worth more than $175,000, including a Rolex watch, designer clothes, lavish vacations, and use of a Ferrari sports car, from a businessman who had sought the governor’s help in promoting a dietary supplement.
In the Court’s unanimous opinion, Chief Justice John Roberts rejected the state prosecutor’s definition of bribery as overbroad, arguing that simply meeting with someone in exchange for a personal gift or campaign contribution is not an “official act” and therefore doesn’t constitute federal bribery.
"There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote in the opinion. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court."
Roberts warned that the lower court’s interpretation of what constitutes corruption is problematic.
"Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” the Roberts opinion stated. “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.”
The danger of defining corruption too broadly, Roberts added, is that “officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse."
The court vacated the convictions, which had been handed down by the United States Court of Appeals Fourth District, meaning a new trial may now be held to determine whether McDonnell’s actions constitute as an “official act” under the parameters defined in Monday’s ruling.
Though reform advocates decried the ruling, some election law experts said it struck the right balance. Richard Hasen, an election law professor at the University of California, Irvine, called the ruling “sensible and courageous” on his blog.
“It is not enough that conduct is odious—the rules governing political action need to be clear enough so that politicians know the line between politics as usual and crossing the line,” Hasen wrote. “Prosecutors seek to make a name for themselves by going after corrupt politicians. But vague and broad laws criminalizing ordinary politics raise due process problems, selective prosecutions, and unfair treatment.”
But watchdogs argue that this was a clear-cut case of corruption, and that the ruling will only make it harder to hold corrupt politicians accountable to federal bribery laws.
“There was a corrupt bargain at work here, and the Supreme Court has disarmed the ability of the American people to police similar corruption in the future,” Fred Wertheimer, president of reform group Democracy 21, said in a statement. “This ruling opens the door to a ‘pay to play’ culture in government, so long as the gift-receiving official does not make a government decision or take an official government action. In essence, the Supreme Court has said it is perfectly legal for an officeholder to sell certain types of actions taken by the officeholder in return for large amounts of money going into the officeholder’s pocket.”
Reformers also say it underscores the urgent need for stricter state campaign-finance laws.
“This entire case could have been avoided if Virginia had taken the necessary and vital steps to prohibit the receipt of huge gifts from people who have business before the government,” said Tara Malloy, deputy executive director for the Campaign Legal Center, which filed an amicus brief in support of upholding McDonnell’s conviction. “Given today’s ruling, states must make it a priority to protect and preserve the integrity of our democracy by passing strong gift laws and campaign-finance laws, both of which are designed to prevent bribery schemes from hatching in the first place.”
Yet, even as reformers voiced concern about the precedent created by such a narrow reading of corruption, they acknowledged that it could have been far worse. The court rejected McDonnell’s argument that the First Amendment constitutionally protects gifts and payments to public officials offered in exchange for policy influence.
“We think the case strongly shows that argument is incorrect,” says Brent Ferguson, counsel at the Brennan Center for Justice. “[The ruling] certainly was not as broad as some thought it would be.”