Corruption at the US high court

Right or wrong, the U.S. Supreme Court's decision in McDonnell v. United States, 2016 DJDAR 6444 (June 27, 2016), ought not to be read in a vacuum. It is but a decision on a path of jurisprudence from a court that appears increasingly flinty in defining what constitutes "corruption," hostile to anything suggesting a liberal interpretation of anti-corruption statutes, and suspicious of vigorous enforcement efforts. Moreover, it "protects" from criminal prosecution the very system of "money in politics" the court has mapped out over the past decade. It was, in a word, inevitable.

The notorious 2010 Supreme Court decision Citizens United is based on the notion (established 35 years before in Buckley v. Valeo) that, in the case of politics, money is a form of "speech" protected by the First Amendment. Such speech cannot be limited absent a compelling governmental interest. Citizens United upended any restrictions on independent political expenditures by nonprofit corporations and, by extension, corporations, unions and other associations, for political advocacy - thus the prevalence of Super PACs.

What is important about Citizens United is why the court rejected the government's countervailing argument that whatever restriction on speech McCain-Feingold (the 2002 law tightening regulations on campaign finance) made was justified by keeping corruption out of the political process. That precise rational for such restrictions had been accepted by the Supreme Court 20 years earlier in Austin v. Michigan Chamber of Commerce. Justice Anthony Kennedy's opinion in Citizens United for the five-justice majority criticized Austin's reasoning that the "distorting effect" of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Kennedy's opinion held that the type of "corruption" that might justify government controls on spending for political speech had to relate to some form of a "quid pro quo" transaction, commonly understood as a bribe or kickback. Mere ability to exert influence over, or gain special access to, a politician by making independent expenditures, Kennedy held, was not corruption or the appearance of corruption. This notion that corruption is limited to bribes and kickbacks would come to mark the high court's public integrity jurisprudence over the coming decade.

Next in line was the Supreme Court's 2010 decision in the Enron case - Skilling v. United States - which brought a challenge to the federal "honest services" statute. Although the court refused to strike down the statute as overbroad and vague (albeit, three justices would have), it did pare it down considerably, and held that "a scheme or artifice to deprive another of the intangible right of honest services, covers only bribes and kickback schemes." Thus, more subtle forms of corruption and misconduct, like self-dealing and buying access and influence, fell outside the statute and the reach of prosecutors. Interestingly, none of the opinions relied on its definition of "corruption" from its still-warm decision in Citizens United.

Four years after Citizens United, another challenge to McCain-Feingold, this time its cumulative contribution limits - which the Supreme Court had upheld a form of in Buckley - reached the court in McCutcheon v. Federal Elections Committee. In another 5-4 decision, this authored by Chief Justice John Roberts, the court struck down these contribution limits as violating the First Amendment free speech clause. Echoing Citizens United, Roberts wrote, "This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption." The chief justice added, "Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption - 'quid pro quo' corruption." The chief justice concluded that spending large sums of money in connection with elections, as opposed to an effort to directly control the exercise of an officeholder's official duties (i.e., bribery), or spending large sums of money to garner influence over or access to elected officials, did not pose the same threat of corruption or even "appearance of the opportunities for abuse."

Finally, former-Gov. Robert McDonnell's case reached the Supreme Court last year. McDonnell accepted a score of "gifts," which he failed to report as a matter of state law, from businessman Jonnie Williams. Williams was keen to have McDonnell help him push his diet supplement by getting Virginia's public universities, including the one founded by Thomas Jefferson, to study the product. The receipt of the "quid" - the "gifts" - was undeniable. But what McDonnell challenged was the existence of the "quo" - whether what he did amounted to "official action" within the ambit of the federal bribery statute. McDonnell argued that even "exchanging" meetings and promotion for cash, on its own, did not constitute bribery. McDonnell's argument plugged into the animating notion of Citizens United (and McCutcheon) that "ingratiation and access ... are not corruption."

The court overturned McDonnell's convictions on the basis that the trial court provided erroneous jury instructions on the meaning of what constitutes an "official act" - the "quo" - in the federal bribery statute. To qualify as an "official act," the court held, the public official must make a decision or take an action on that "question" or "matter" or agree to do so, or use his official position to exert pressure on another official to perform an "official act."

It appears that is precisely what McDonnell did - seek to influence or exert pressure on others to perform an official act in exchange for the "gifts," where he was the governor of the state - a factor Chief Justice Roberts completely ignored in his opinion. However, the court rejected this idea, holding that "setting up a meeting, talking to another official, or organizing an event [or agreeing to do so]" - a phrase Roberts repeated ad nauseam in his opinion, does not fit that definition of "official act." Thus, the jury instructions, in suggesting otherwise, were erroneous and the convictions could not stand.

Roberts explained that, if such activity were swept into the federal bribery statute, it would "cast a pall" on "the basic compact underlying representative government" - that is to say, how business gets done in politics and government. And that is precisely the prevailing notion of what is corruption versus what is business-as-usual in politics and governing that springs from Citizens United-Skilling-McCutcheon: that buying influence and access is not "corruption." However, one would hardly know this prelude reading the decision because, except for a single early citation to Skilling, the opinion makes no mention of the Citizens United-bred jurisprudence.