Nancy Gertner is a retired federal district court judge and a senior lecturer at Harvard Law School. She is a signatory of an amicus brief in the Supreme Court case United States v. McDonnell, on behalf of former Virginia governor Robert McDonnell.
When we talk about political corruption, what often comes to mind is what the law calls “quid pro quo”: I give a politician money and in exchange he or she gets me a government contract or votes in my favor. But there is a continuum of quid pro quo exchanges, some plainly illegal, some not and some ambiguous.
In the case of former Virginia governor Robert McDonnell, the Supreme Court will decide whether it is constitutional to prosecute a public official for conduct on that continuum, conduct never before determined to be at the illegal end. The issue is not whether we should regulate gifts to public officials; the issue is whether the criminal law can be used as a bludgeon when we have not done so. I think not. As a matter of due process, criminal prosecutions can be brought only when we have clearly defined what is legal and what is not.
At the one end of the quid pro quo continuum is money in exchange for the exercise of government power in favor of the donor, which is indisputably criminal. At the other end is money for what the Supreme Court referred to in Citizens United as “access and ingratiation,” in effect, corruption with a small “c .” This exchange is not criminal, but hardly good for a democracy.
The “quid” — what the donor gives — could be a campaign contribution, as in Citizens United, or money for a favored charity, or just the money spent taking a politician to dinner and a Broadway show. The quo — what the politician delivers — could be a vote or a contract (outright bribery); access to public officials (“I will always take your call”); invitations to government dinners (sitting next to a governor or senator); or just introductions to the relevant decision-makers.
Citizens United went a long way to legitimize corruption with a small “c.” The case involved campaign contributions, which the court found to be protected by the First Amendment; to those in the majority opinion, political speech and political contributions were indistinguishable. Any government regulation on speech had to be justified by a compelling interest, the highest legal burden. Regulation of money in political campaigns in the interest of preventing corruption or even the appearance of corruption, according to the court, was not enough.
But the majority’s language swept even further. Money for ingratiation and access to a politician was not corruption at all, let alone the appearance of corruption. It was simply part and parcel of U.S. politics. As Justice Anthony Kennedy wrote: “The fact that speakers [i.e., those who made campaign contributions] may have influence over or access to elected officials does not mean that these officials are corrupt.”
It did not matter that “access and ingratiation” skewed the political agenda, putting contributors’ concerns ahead of those of an ordinary citizen. Nor did it matter that even if the politician didn’t guarantee a particular outcome for the contributor, insider access made a favorable result more likely.
And in a post-Citizens United world, the quid pro quo are blatant. The Boston Globe recently reported that the Massachusetts Republican Party announced a new program designed to solicit high-dollar contributions from political action committees. In exchange for the contribution, the party offered “meetings, one on one calls and fundraising events” with Mass. Gov. Charlie Baker. For a mere $43,400 per person, the email announced, the contributor can have direct contact with the state’s highest elected official. (Baker was quoted as disavowing the email.)
But outside of the context of political campaigns, the situation is murky. The quid (what is being given) include the litany of benefits that the Supreme Court now grapples with in McDonnell’s appeal — including golf trips, rides in private planes, elegant dinners, use of a luxurious lake home and a trip to Cape Cod. While these benefits could be regulated because they are not remotely political speech (or at least, not yet), we have not done so with any consistency or clarity. Regulation of gifts to politicians is a patchwork quilt of federal and state statutory rules and ethical provisions.
In this morass, the only thing that is clear is that there is no role for criminal prosecutions. The rules enforced by the criminal law have to be clear: Due process requires that the criminal law give notice to citizens about where the line between legal and illegal conduct lies. As then-Attorney General Robert Jackson would argue, when the law is unclear, a prosecutor is free to pick the person he or she wants to prosecute and then contrive the charge.
To say that something is not criminal is not to say that it is good and should be encouraged. These exchanges can and should be regulated. We should create clear bright line limits on gifts to officials. Indeed, we may even want to ban gifts to politicians over a certain amount (Virginia, where McDonnell was prosecuted, for example, had not).
Indeed, I join with many who think Citizens United was wrongly decided. When the majority in Citizens United noted that the “appearance of influence or access [from campaign contributions] … does not cause the electorate to lose faith in our democracy,” it was flat-out wrong. As this election season makes clear, it has.
But I also joined with other law professors in criticizing the McDonnell prosecution. We don’t use the criminal law to bludgeon compliance with conduct that we never bothered to define with any clarity. That practice enables a different sort of corruption, with a small “c.”
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