Former Virginia governor Robert F. McDonnell won a major victory Monday at the Supreme Court, where the justices unanimously vacated a lower court’s decision that found him guilty of bribery charges after he accepted more than $175,000 in loans, gifts and other benefits from a Virginia businessman.
The win doesn’t necessarily end McDonnell’s high-profile fight to stay out of prison, but it does make clear an important point in U.S. corruption law: A politician is corrupt only if he or she committed an “official act” in exchange for gifts. Translated, that means an elected official can accept gifts or other favors so long as it doesn’t result in a direct transaction for votes or any other “formal exercise of government power.”
On the surface, McDonnell’s victory Monday might seem shocking. There’s no doubt that while in office, the Republican had an unsavory relationship with businessman Jonnie R Williams Sr. McDonnell and his family accepted a $6,000 Rolex watch, a vacation to Cape Cod and golf equipment from Williams in 2011 and 2012 — and as a result, Williams had much greater access to the governor and his office through meetings and phone calls.
Was the relationship unethical and generally scummy? Yes, absolutely. But is it corrupt under the law? No, and certainly not under the current regime, whereby the “quid pro quo” standard reigns supreme.
As Chief Justice John G. Roberts Jr. wrote in the court’s opinion:
There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute.
The key part of that statement is “boundless”; Roberts is clearly suggesting that if the court were to uphold McDonnell’s conviction, it would be endorsing a legal regime under which prosecutors could go after politicians simply for the appearance of corruption. Where would we draw the line? And how could we trust locally elected prosecutors not to open cases out of partisan spite?
This is, of course, a pretty thorny issue. Many legal scholars hold a lot of disdain for the comparatively high quid pro quo standard — as was made clear in a series of articles In Theory published last month on the topic. For these critics, corruption in politics doesn’t always appear in the form of a transaction. Corruption can also be described as a distortion of public policy in favor of the wealthy or well-connected.
As Stephen K. Medvic of Franklin & Marshall College said:
The real problem is not that some people’s interests occasionally win out over the interests of others. It is that some groups, namely the wealthy, win far more often than other groups. There is evidence that economic elites and business organizations have a greater impact on policy outcomes than do groups representing average citizens. (Whether this is due to their campaign contributions or their influence in culture and society, generally, isn’t entirely clear.) In addition, the candidate with the most money, all else being equal, typically wins in an otherwise competitive election. The combination of these facts suggests that the playing field is tilted toward those with money.
This circles back to the long-standing critique of the Roberts court’s rulings on campaign finance, specifically the Citizens United decision, which allowed for unlimited spending on political ads. As Zephyr Teachout, a professor of Fordham University, wrote last month:
Lobbyists have gained grotesque amounts of power in legislation, allowed to use campaign cash and the revolving door of political appointees to gain influence. According to the Court, as long as you don’t say magic words of exchange while talking to a lawmaker, your financial support is not corrupting, even if it sways legislation and policy. To add insult to injury, the Court is now — in McDonnell v. US — also considering narrowing traditional bribery laws as well, adding requirements before prosecutors can bring basic federal corruption charges. A tendency to constrain corruption in both campaign finance and criminal bribery law will lead citizens with few tools to fight a serious threat to our democratic culture.
The McDonnell ruling comes at fascinating point in U.S. politics, when accusing established politicians of being corrupt has become the norm. It’s the theme both Donald Trump and Sen. Bernie Sanders (I-Vt.) have been running on for a year now, alleging forcefully that elected officials are beholden to special interests. Given their unexpected success throughout the primaries, it seems that if there were ever a time for the public to be frustrated with the quid pro quo regime of the current Supreme Court, it would be now.
The issue at the core of the McDonnell case, then, is a question of legitimacy in our democratic system. If a small handful of people are easily able to secure sway of our elected officials while they’re in office, what’s the use of elections at all?
Roberts argues persuasively in his opinion that by upholding the current standard, the court is protecting political legitimacy. By refusing to broadly define “official acts,” the court is setting up a firewall that prevents the legal system from having boundless power to determine the political legitimacy of elected officials in the courtroom.