When it comes to the United States Supreme Court and the world of campaign finance and corruption, we are often confronted with the law as it is and the law as it should be. There’s an interpretation of law according to the court, and how it plays out in the real world. The reporting of Adam Liptak in The New York Times was prophetic: On Monday, the highest court in the land issued a unanimous decision that vacated former Virginia Gov. Bob McDonnell’s conviction for corruption.
The Economist wrote in April that the Supreme Court was inclined to loosen bribery rules; Jeffrey Toobin wrote that it was getting ready to legalize corruption. This may have felt like hyperbole, and yet here we are. The public knows that there’s no such thing as a free Rolex. The highest court in the land has unfortunately decided otherwise.
The broader import of the Supreme Court’s judgment, however, goes far beyond the case of the McDonnells, who could be tried again. By narrowly defining what an official act is and raising the standard of evidence required for a conviction, this decision will erode the ability of prosecutors across the United States to make corruption cases stick in court.
It will embolden everyone who does “business as usual” in the political world. Instead of creating a chilling effect on our politics, the court has warmed them up, endorsing the cozy relationship between those with access and resources and those they wish to influence — as long as it does not rise to a documented payment or exchange of assets or favors in a regulatory, legislative or electoral matter. That is why campaign finance watchdogs are decrying this ruling — and we are as well.
This ruling doubles down on the Supreme Court’s decision on McCutcheon v. FEC, emphasizing that for these jurists, corruption entails only direct favors or access. As Cristian Farias reported at the Huffington Post, “The crux of the case was the question of what kind of behavior by elected officials counts as an ‘official act’ under federal anti-corruption laws, which prohibit quid pro quo corruption — or the exchange of something of value for government favor.”
According to the Federal Bribery Statute, for the act to be “official” there has to be a “question, matter, cause, suit, proceeding, or controversy” that the public official took an action on; the court then interpreted what “action” means in a misguidedly limited way. As Zephyr Teachout notes in “Corruption in America,” the Supreme Court’s narrow view is not the only one that has prevailed over the history of the United States, nor should it endure as the standard in the 21st century. While this case does not directly affect campaign finance regulation, the Supreme Court making direct evidence of corruption as the only justification for limiting campaign contributions does.
“From a legal standpoint, McDonnell’s case reinforces a narrow definition of corruption: In the era of Citizens United, it would seem that anything less than an explicit quid pro quo arrangement simply isn’t going to cut it,” writes Steven Cohen for the New Republic. “In doing so, however, it also reinforces the divide between how officialdom understands permissible conduct and how the general public does. Technically legal or not, it’s never going to be a good look for a cash-strapped governor to drive around in a snake-oil salesman’s Ferrari.”
Where legality and ethics diverge
The larger outcome of these decisions will be to further legalize a general sense that politicians can be bought, widening the gap between what courts find permissible and what common sense suggests about the ethical boundaries for elected officials.
“The Supreme Court decision belies reality,” said Democracy 21’s Fred Wertheimer, in a statement. “If you show the facts in the case to any citizen, the citizen will conclude that the public official has sold his office for personal, financial gain.”
While we don’t dispute the fact that the public is likely to come to that conclusion, when the Supreme Court hands down a unanimous decision, we should interrogate the logic it’s based upon. Here, the justices found that the jury was not properly instructed by the prosecutors regarding what an official act by an elected official entails. We are also sensitive to arguments that the prosecution violated due process.
“Our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns,” wrote Chief Justice John Roberts, referring to the gifts that McDonnell and his wife received. “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.”
As Justice Stephen Breyer indicated during oral arguments, it is normal for politicians to urge attention be paid to the concerns of constituents, and the line between such activity and corruption is not always clear. McDonnell’s acts went well beyond the usual access granted to a constituent. As SCOTUSblog highlighted, they were also taken in exchange for the gifts made by Virginia businessman Jonnie Williams.
The Supreme Court has in recent decisions found “ingratiation and access” to be a reasonable expectation of political contributors, as former White House Counsel Robert Bauer has written.
That raises troubling questions. As Josh Gerstein reported at Politico, Justice Elena Kagan asked whether a scheduler to a public official could sell appointments for meetings; McDonnell’s lawyer said that it would be “a very close case.”
What’s the way forward?
Now that the court has ruled, there are several approaches that could help to mitigate the damage to public trust and good government.
One remedy is for states to ban or limit gifts to elected officials, which removes the need to demonstrate or define an official act. Virginia has passed legislation that puts limits on gifts in the wake of the McDonnell case that placed an annual limit of $100 in gifts to elected officials from lobbyists, but the reform contains loopholes and does little to shift the status quo in state politics.
Another would be for Congress to amend the federal criminal code “to revise and expand prohibitions against bribery, theft of public money, and other public corruption offenses.”
Defenders of the Supreme Court’s decision on McDonnell’s case posit that federal bribery law is too vague and prosecutions have been too sweeping. Revising federal bribery law could address these concerns without crippling investigations into official misconduct. As election law expert Richard Hasen argued in defense of the decision, however, “The rules governing political action need to be clear enough so that politicians know the line between politics as usual and crossing the line.”
While there’s no doubt that letting the public see how elected officials are being influenced by favors, real-time disclosure of those gifts may heighten our sense of influence gone wild than to serve as the check and balance our politics require.
Even current justices are skeptical of the effectiveness of disclosure, despite the counterbalancing such disclosure was given in McCutcheon v. FEC.: As Roberts wrote, “Reports and databases are available on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as OpenSecrets.org and FollowTheMoney.org” — but can we honestly say that public trust in our elected officials or the ethical standards of government has increased as a result since 2014?
Ultimately, disclosure can help, but it’s not going to be a replacement for prohibiting corrupt acts. Even if the standard we use to distinguish politics as usual from explicitly corrupt acts lives in a complex gray area, it still has to exist. The court’s assumptions about politics are again out of step with the reality of public expectations and donors’ real influence.
Some commentators have warned that prosecutors have “criminalized” ordinary acts of politics through applying corruption laws. In return, we’d echo the New Yorker’s Amy Goodman: ”Would challenging a culture of normalized influence-peddling really be such a bad thing?”
The decision that the Supreme Court should be pushing us all to make is whether what we accept as “ordinary” in our politics today should be what we tolerate tomorrow.