Last month, the Supreme Court overturned former Virginia governor Robert McDonnell’s conviction for corruption in a unanimous decision. McDonnell had been convicted of corruption for allegedly using the governor’s office to enrich himself by personally hosting events promoting a friend’s business ventures in exchange for more than $165,000 in gifts and loans. The court ruled that his actions were not corrupt because they were not official acts.
Debate over McDonnell’s case, both before and after the court’s decision, was intense. Some observers argue that the court is right in applying a strict conception of corruption, accepting the justices’ reluctance to intervene in the routine give-and-take of politics. Others see the McDonnell and other recent rulings as being far too tolerant of the influence of money in politics and government.
In effect, the court has defined corruption in a way that requires prosecutors to prove an explicit quid pro quo agreement. This narrow definition is out of line with both public opinion and scholarly research on corruption.
What does public opinion say about political corruption?
McDonnell’s actions did not pass the “smell test” with most Virginians. In a poll shortly after his 2014 conviction, 68 percent agreed that he was guilty of trading power for money, while only 12 percent disagreed.
More generally, significant majorities of Americans think that money is corrupting democracy. A 2015 New York Times-CBS News poll of 1,022 adults asked whether “all Americans have an equal chance” to influence elections or whether wealthy Americans had an advantage. Fully 66 percent (and 55 percent of Republicans) said the wealthy have an advantage. More than half — 55 percent — said that “most of the time” politicians promote policies that help those who donated to their campaigns. And 84 percent said “money has too much influence” in our democracy.
That is not an isolated finding. Between 2006 and 2014, Gallup regularly asked, “Is corruption widespread throughout the government in this country, or not?” Sizable majorities — between 67 and 79 percent — said that it is.
Meanwhile, over the past decade, the Supreme Court has weakened restrictions on the use of money in politics. The most controversial of these rulings, Citizens United v. Federal Elections Commission (2010), held that it is not corruption for someone to spend money in pursuit of “ingratiation and access.”
To be clear, contributions to candidates and lobbying for favorable policies are part of democracy and enjoy constitutional protection. Few would bar such activities across the board. The overwhelming majority of money is contributed, reported and spent legally – or at least, not illegally – yet many remain worried about “legal corruption.” The Supreme Court has pushed its view far from what Americans as a whole believe to be true.
How unhappy are Americans about how wealth is affecting democracy?
To find out how discontented Americans are, I asked a number of questions in a 2015 Rutgers-Eagleton Poll, conducted by the Eagleton Center for Public Interest Polling. More than 54 percent said that, in politics, ordinary people get “overruled by big campaign contributors.” More than 56 percent agreed that “More and more there is one set of rules for the rich, and another for the rest of us.”
That sense of unfairness extends from politics to the economy: Roughly more than 57 percent thought that that the economy doesn’t give “most people a fair chance to get ahead” — and roughly a third of respondents feel that strongly.
Most Americans expect fairness. They expect to have a voice in decisions affecting their lives and to have their views and values taken seriously. Many think this is no longer so. We saw some of the results in this year’s Sanders and Trump campaigns, and in the Occupy movements of recent years.
Can the popular and judicial views of corruption be reconciled? For that to happen, the court would have to revisit its own rulings. In 1976, the Supreme Court ruled in Buckley v. Valeo held that restrictions on political money raise concerns about limiting protected First Amendment speech — and overturned portions of the Federal Election Campaign Act that had placed strict limits on campaign spending as well as contributions.
But the same decision noted that the government retains a compelling interest in preventing corruption, or even the appearance of corruption, and so can impose narrowly crafted limits to political money. Since Citizens United, the Supreme Court has stopped mentioning the need to prevent “the appearance of corruption.” This may be why so many Americans think their government to be overly influenced by the wealthy for their own benefit.
Defining corruption is inherently political
But this clash among different U.S. centers of power –the judiciary, the citizenry, the news media, and of course, various political actors — may be inevitable. Academics have long debated — with no real conclusion — over how to define corruption.
I have argued that looking for bright-line distinctions between corrupt and non-corrupt acts is futile: Rules, roles, and conceptions of justice keep changing, because they are inherently controversial — and so are constantly being revised in further political struggles. First one side defines corruption in a particular way; then another group makes efforts to pull the definition closer to what it thinks.
We have seen this shift in our lifetimes. Such controversies over the limits of power are healthy for democracy.
In fact, it is less remarkable that the justices have defined corruption in narrow ways than that we expected them to resolve the question in the first place.
Michael Johnston is the Charles A. Dana professor of political science emeritus at Colgate University. He lives and works in Austin.