Symposium: An important victory for representative democracy

David Debold is Partner at Gibson, Dunn & Crutcher LLP in Washington, D.C.

Americans who believe democracy works best when public officials understand and serve the needs of their constituents can celebrate the Supreme Courts unanimous decision to throw out the conviction of former Virginia Governor Bob McDonnell. The government prosecuted Governor McDonnell based on a sweeping legal theory that would have turned commonplace interactions with our elected officials into bribery. Under that theory, there was no need for prosecutors to prove he exercised governmental power in exchange for something of value. If that result had been allowed to stand, then merely hearing out a constituents concerns would qualify as an official act on which prosecutors could base felony corruption convictions. Todays decision soundly rejecting such a theory preserves the key role of access in our representative democracy.

Our political system is second to none because in this country officials serve the needs of the people, not the other way around. For that to work, constituents need to be heard by their elected representatives. That access is vital to ensuring that government employees understand the problems that face our communities and represent the people effectively in response to those problems and other needs. Until this case was brought, a constituent could contribute money to the officials campaign or make gifts without fear of criminal prosecution should the official take the routine step of simply meeting with the constituent to hear him or her out or asking others to take the meeting. Federal corruption law has long been understood to target something narrower: unlawful quid pro quo arrangements. Under our law, an official may not receive something of value (the quid) in exchange for agreeing to perform an official act (the quo).

The key question in this case was whether the government could get away with defining official act so broadly that mere access to public officials would become a federal crime. By untethering the definition of that term from traditional exercises of governmental power, the lower-court decisions in McDonnell v. United States threatened to have a dangerous chilling effect on the everyday functioning of our democratic system. Imagine a world in which federal agents and prosecutors have nearly unlimited discretion to bring corruption charges simply by digging up evidence that an official received a thing of value from someone who was given mere access to government employees.

The danger of such a theory starts with the fact that the quid in a quid pro quo prosecution can be a perfectly lawful thing of value, ranging from campaign contributions to something as mundane as a meal reimbursement at the local diner. Until Governor McDonnells conviction, the risk of prosecutorial overreach was kept in check by the rule that the quo in the exchange is limited to official acts. But this case represented a seismic shift in criminal liability. The trial judge instructed the jury that an official act is so broad it includes any action that, by settled practice, public officials customarily perform, including those that do not resolve or even influence the outcome of any question or matter. Because day in and day out officials routinely listen to constituents or help them navigate the bureaucratic maze of government to find someone who can address an issue, it takes only a small quid from one of those constituents to raise the specter of a felony indictment.

Fortunately, Chief Justice John Robertss opinion for the entire Court rejected this expansive view of official act. The Court held that an official act is a decision or action on only those matters that involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. That exercise of power must also be something specific and focused. Broad objectives such as a governors effort to bring jobs to his state does not cut it.

As for what qualifies as a decision or action on the matter, the Court made clear that [s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so) without more does not fit that definition of official act. The Court explained that these sensible limits provide no sanctuary for the corrupt official who accepts payments in exchange for abusing his official position whether by taking action himself on a matter before him or using his official position to exert pressure on another official to perform an official act, or to advise another official, knowing or intending that such advice will form the basis for an official act by another official.

Todays decision thus reins in prosecutors who might otherwise be tempted to wield federal corruption law to manufacture a corruption scandal. It is an important win for representative democracy regardless of where ones political allegiances lie. I had the privilege of serving as counsel of record for a bipartisan group of former federal officials who filed an amicus brief supporting reversal of Governor McDonnells convictions. In his opinion Roberts explained that this issue belongs neither to conservatives nor liberals: White House counsel who worked in every administration from that of President Reagan to President Obama warn that the Governments breathtaking expansion of public-corruption law would likely chill federal officials interactions with the people they serve and thus damage their ability effectively to perform their duties.

The Court properly recognized the high stakes for representative democracy in this case, when it also observed that conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. If public officials know that merely meeting with campaign contributors or other benefactors could trigger a criminal corruption investigation, they will be tempted to simply seal themselves off from interactions with any person or group that has given them anything of value. As the Court wrote: 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. Just think of the time and expenditure of legal resources that would be needed to clear in advance the everyday interactions that public employees now take for granted as an essential part of doing their job properly. Ultimately, public service in our representative democracy would have been diminished had the case turned out differently.

The Courts decision avoided this by holding that [s]imply expressing support for a constituents project at a meeting, event, or call or sending a subordinate to such a meeting, event, or call similarly does not qualify as a decision or action on the [project], as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an official act. Our representative democracy benefits from the Courts reinforcement of this important line between corruption and legitimate interactions among officials and those they serve.