Blog — Corruption

July 07, 2016

McDonnell Decision Unjustified, but Leaves Avenues to Prosecute Corruption

By Stuart McPhail

Last week, the Supreme Court of the United States reversed the bribery conviction of former Virginia Governor Robert McDonnell, a man who freely admits that he sold access to himself and to his subordinates to a wealthy business man to lobby them to use government funds to pay for a study for the businessman, all in exchange for nearly $200,000 in cash and luxury goods, including a Rolex watch and flights in a private jet.  In doing so, the Court issued a badly reasoned decision that unnecessarily and without textual basis narrowed the scope of the federal bribery statute.  As Citizens for Responsibility and Ethics in Washington (“CREW”) stated in the wake of the decision, it will make important corruption charges more difficult to bring and more difficult to prove, and it may result in serious corruption going unpunished.

It is important to note, however, that the decision is limited in significant ways.  First, although the Court narrowed the type of acts that the law currently counts as “official acts”—those acts that it is unlawful for an official to sell in a bribery scheme—the Court did not question legislatures’ ability to adopt a broader definition than what is currently in the federal law.  A state can, even with this decision, choose to define an official’s sale of access as bribery.  Congress could similarly broaden the language in the federal law.  Further, the Court did not cast doubt on the excessive gift laws on the books:  a law which would have flatly barred McDonnell’s behavior except that it was inexcusably absent from Virginia’s statutes during McDonnell’s term, but which Virginia has now adopted (although they could still be improved).  In light of the McDonnell decision, it is all the more important that states adopt rigorous gift laws. 

Second, the Court recognized that the sale of an official act need not take the tidy form of cash handed over in exchange for a vote cast.  An agreement is enough, even if no act is carried out.  Further, the Court recognized that officials can and do act through and on other officials, and a bribe can be effective even if not given to the person with final authority over the “official act” in question.  As the Court wrote, “if an official sets up a meeting, hosts an event, or makes a phone call on a question or matter that is or could be pending before another official, that could serve as evidence of an agreement to take an official act.”  So where money buys an officials’ “pressure” on or “advice” to another official on that official’s act—like where campaign contributions are used to buy a Senator’s or Representative’s extensively lobbying of executive officials in their exercise of official acts on behalf of the contributor—that is still a bribe under the law.  

Third, the Court recognized that quid pro quos are rarely written down (and also rarely, though somewhat less so, recorded on a wire tap).  So the Court recognized that juries will likely have to infer corrupt agreements from the circumstances; explicit agreements are not required. “A jury could, for example, conclude that an agreement was reached if the evidence shows that the public official received a thing of value knowing that it was given with the expectation that the official would perform an ‘official act’ in return.”  Thus, a jury could find a bribe where, hypothetically speaking, an official accepted gifts knowing, because it was spelled out in a letter, that the gift giver wanted the official to “use the attached protocol to initiate the ‘Virginia study’ of Antabloc at [VCU] and [UVA]” or where the gift given explicitly tells the official “he ‘needed his help’” with funding government studies for the benefit of the gift giver. 

Fourth, the Court did not even think worthy of consideration Governor McDonnell’s argument that he had a constitutional right to accept the gifts.  As CREW argued in its amicus brief to the Court in the case, that argument was badly reasoned and misconstrued the Court’s campaign finance jurisprudence.  The Court’s refusal to even discuss the argument simply shows how baseless it was.  It further means that the Court’s decision has no application in the campaign finance realm.

Of course, none of this is to say that McDonnell was anything but a bad decision.  The Court unnecessarily carved out from the reach of the federal bribery statutes bought-and-sold access, at least where that access is not connected to an agreement to perform, or to pressure or advise another to perform, a narrow set of “official acts.”  It did so out of a desire that “public officials will hear from their constituents and act appropriately on their concern” free from a “pall of potential prosecution” because the constituents contributed to the official’s campaign or “invited the official to join them on their annual outing to the ballgame.”  Putting aside the quixotic and anodyne musings of the Court on constituent relations—musing which demonstrate a “lack of understanding on the part of the justices that a little bit of money can breed corruption”—the Court’s decision does nothing to alter the supposed pall.  Prior to the decision, officials need not have feared prosecution for meeting with constituents, hearing out their issues, and acting on their concerns so long as they did not agree to sell that access.  And now even after the decision, an official faces the risk of prosecution if their act “on their [constituents’] concerns” is an “official act.”  The only thing the Court removed from prosecution is the official’s blatant sale of access for his personal enrichment:  it rewards the official who will hear out his constituents—for a price—and thenrefuses to act. 

Simply put, the Court has let officials put a price on access to them without fear of being prosecuted for bribery under the current law.  It remains to be seen whether the $1000+ ticket prices for fundraisers will soon be matched by $1000+ ticket prices to cross the statehouse door. 

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