Symposium: Is it bribery or “the basic compact underlying representative government”?

Tara Malloy is Deputy Executive Director of the Campaign Legal Center in Washington, D.C.

Yesterday, the Supreme Court unanimously overturned the conviction of former Virginia governor Bob McDonnell on eleven counts of bribery-related charges, holding that his trial proceeded under an overly expansive reading of the “official act” element of the federal bribery statute. The Court’s remand order leaves the door open for a retrial under a narrower standard, but all in all, it was a good day for the governor and a bad day for public-corruption prosecutions. Mostly, though, it was a bad day for Americans, as eight Supreme Court Justices all but told us that we must tolerate some level of “pay to play” politics in democratic governance.

The jury below convicted McDonnell for taking $177,000 in gifts and loans from Virginia businessman Jonnie Williams, Sr., in exchange for championing his company’s tobacco-derived dietary supplement, Anatabloc. At the heart of McDonnell’s appeal was whether his actions constituted “official acts,” as defined by the federal bribery statute, and if so, whether the laws governing the case were unconstitutional.

McDonnell defended his self-dealing on various grounds, most relating to the claim that his promotion of Williams’s business did not involve the “exercise of actual sovereign power” and thus did not constitute an “official act” under a proper reading of the bribery statute. Most radically, he argued that the meetings and events he planned for Williams were nothing more than the “provision of mere access,” and consequently were “constitutionally protected and an intrinsic part of our political system.” As support, he pointed to the Court’s recent decisions in Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, both of which struck down campaign-finance laws under the First Amendment and questioned whether an official’s provision of access to campaign supporters was a form of corruption that could sustain such laws.

Yesterday’s decision endorsed McDonnell’s narrow reading of “official act,” but declined to pursue any First Amendment theory of the case. While it is some relief that the Supreme Court has not enshrined the purchase of political access as a new constitutional right, its reading of the bribery statute will certainly make prosecutors’ job harder.

According to the Court, the government stretched the definition of “official action” at trial to encompass “nearly any activity by a public official,” including “workaday functions” like constituent calls and meetings – functions which, “standing alone,” the Court believed should not qualify as official acts. To ensure that the statutory definition was “focused and concrete,” the Court adopted a narrow interpretation: “merely” setting up a meeting, calling another public official or hosting an event – or instructing a subordinate to do so – is not enough, unless those actions are undertaken with the intent to pressure another official or to provide advice that is intended to “form the basis for an ‘official act.’”

The Court characterized its decision as a relatively modest correction of the government’s “boundless interpretation” of the federal bribery statute, and one can hope that in application its narrow construction of the statute will indeed “leave ample room for prosecuting corruption,” as the Court claims. But equally troubling as the result was the Court’s invocation of “significant constitutional concerns” – namely concerns that the government’s reading of “official acts” would infringe upon legitimate relationships between officeholders and their “constituents” – to justify the result. The vision of politics articulated in Citizens United and McCutcheon seemed very much alive in yesterday’s decision, even if these cases were not explicitly referenced.

The Court explained that the government’s broad reading of the “official act” language would imperil “the basic compact underlying representative government,” namely, 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.”

But these hypotheticals bear no resemblance to what happened here. The comparison was so obviously inapt that the Court felt compelled to admit that McDonnell’s actions were “far from” “normal political interaction between public officials and their constituents.” Why did the Court then feel compelled to dress up $177,000 in bribes as “constituent services” and Williams as an ordinary “constituent”? This analogy only serves to obscure the reality that narrowing the bribery law will likely only protect big donors and would-be bribe-givers, not your average citizen.

And where exactly is the slew of outrageous prosecutions of honest constituents and “conscientious public officials” that the Court seems to fear? Has there ever been a whisper of a potential bribery prosecution because homeowners invited an “official to join them on their annual outing to the ballgame” after he inquired about their neighborhood power outage?

Apart from the utter unreality of its hypotheticals, the Court’s fear about the slippery slope of potential political prosecutions disregards another requisite element of a criminal bribery conviction: a corrupt agreement. As the Deputy Solicitor General, Michael Dreeben, pointed out in oral argument, the “official act” language “does not have to do all the work.” The statute adds another layer of protection for potential defendants by requiring the government to prove a knowing agreement, or “quid pro quo,” between official and benefactor. Thus, even under the broadest interpretation of “official act,” the hypothetical “conscientious” official attending to power outages need only fear prosecution if the government can show that she came to a clear agreement with the homeowners – for example, I will only check up on the restoration of your power if you take me to a ball game. To spell out the scenario is to confirm its absurdity.

One might thus fairly wonder about the vision of democracy that animates this decision.   The Court eschewed any suggestion that it was relying upon its campaign-finance precedents. But arguably, the only reason that McDonnell’s massive pay-to-play operation could even conceivably be viewed as “normal political interaction” is the Court’s recent reversal of decades of precedent that had turned a much more skeptical eye to influence-peddling and big-money politics.

With the appointment of Chief Justice John Roberts and Justice Samuel Alito in 2005 and 2006, a more conservative Court embarked upon a mission not only to strike down campaign-finance laws it deemed overly restrictive of speech, but also to redefine the types of “corruption” that campaign-finance laws could legitimately target in the first place.

In 2003, the Supreme Court voted five to four in McConnell v. Federal Election Commission to uphold a number of campaign-finance restrictions, holding that “Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing undue influence on an officeholder’s judgment, and the appearance of such influence.” The majority specifically rejected a “crabbed view of corruption,” asserting that it “ignores precedent, common sense, and the realities of political fundraising.”

Fast forward seven years and a reconstituted Supreme Court began to embrace exactly that crabbed view. In its 2010 Citizens United decision, the new five-Justice majority now held that the only cognizable form of corruption in the campaign-finance sphere was “quid pro quo corruption” or straight “cash for votes.” According to the new majority, general concern about donors buying “ingratiation and access” was not a sufficient constitutional justification for campaign finance laws – or at least for the corporate campaign spending ban under review.

In McCutcheon, the Court continued to narrow the scope of cognizable corruption. Roberts, writing for a four-Justice plurality, held that “ingratiation and access” were not simply unfortunate byproducts of deregulated campaign finance, but “a central feature of democracy.” The Chief Justice did his signature move of recasting big donors – even out-of-district donors with no right to vote in a particular election – as “constituents,” writing approvingly that “constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

The radical First Amendment defense articulated in McDonnell’s cert. petition, later softened in his merits brief, seized upon these cases to proclaim that the sale and purchase of political access was “constitutionally protected.”

Thankfully, the Court did not bite. McDonnell’s most aggressive constitutional argument was no doubt aimed at the five-Justice conservative majority that decided Citizens United and McCutcheon, so it was no surprise that he recalibrated his position when Justice Antonin Scalia passed away before the merits briefing.

But even if McDonnell’s original position can no longer command a majority, the perspective on politics expressed in Citizens United and McCutcheon still seems to drive yesterday’s holding. The Court acknowledges that the governor’s activities were “distasteful” and “crass” and “dishonest,” and that at minimum, he provided Williams with repeated access to governmental decision-makers crucial to his business interests. His prosecution was not based on a novel theory of public corruption; many courts of appeals have upheld similar convictions. Why then bend over backwards to read the statute so narrowly as to potentially excuse McDonnell’s self-dealing?

One answer is that regulation of the political sphere, in particular, requires bright lines to provide clear notice to officials and to preclude the possibility of selective enforcement. But this only explains the need for a clear line, not where the Court drew the line: clarity alone did not demand that an officeholder’s provision of “access” to benefactors be excluded from the definition of “official act.” Clearly, such access has enormous value regardless whether the indebted official ultimately succeeds in influencing a state act or decision. It was worth $177,000 to Jonnie Williams. Does it really “cast a pall” on “democratic discourse” to bar the selling of such access for gifts or campaign contributions pursuant to a corrupt agreement proved beyond a reasonable doubt? As all Hamilton fans know, it pays to be in “The Room Where It Happens.” Taken to its logical end, the Court’s approach permits officials literally to put “access” up for sale, including, as the government wrote in its merits brief, a White House scheduler “accepting a $5000 payoff to secure a Rose Garden event” or a cabinet secretary “auctioning off his official appearances to the companies willing to pay him the most.”

Some Justices would no doubt respond that there are other laws to address the purchase of access, particularly campaign contribution limits or gift laws. Virginia, notably, had neither. The Campaign Legal Center would hardly argue against the need for such measures, and indeed, they would be our first recommendation to states wishing to head off a reprise of McDonnell’s case. But endorsing campaign-finance laws as the solution rings a tad false here given the survival rate of such laws in the last decade of Supreme Court rulings. When campaign-finance laws are invalidated, bribery laws are invoked to save us; and when bribery standards are cut back, campaign-finance laws are the answer. Supreme Court scrutiny in this area is more Procrustean bed than reasonable review. No law is apparently the right fit for the problem at hand, and the practical result is no laws at all, or at the least, greatly diminished protections for public integrity. McDonnell may have won this round, but it is another loss for the rest of us.