Robert Bauer served as White House counsel to President Obama. He is a partner at Perkins Coie and teaches at New York University School of Law.
A unanimous Supreme Court held Monday that it is not — certainly not under any and all circumstances — a crime for someone to pay for “access” to government decision-makers. Careful not to say so too explicitly, the court is signaling that political favor-seeking fueled by cash and gifts may well be repellent, but there is only so much the legal system can — or should — do about it.
Amid all the election-year talk about a “rigged” political system, the room left by this opinion for pay-to-play politics strikes a somewhat discordant note. Two years ago, in a case involving overall contribution limits, Chief Justice John G. Roberts Jr. wrote that contributors can reasonably expect some measure of “ingratiation and access.” Now, Roberts has taken another, aggressive step in that same direction, this time involving personal gifts rather than political contributions. He has brought the court along with the view that the bribery laws don’t necessarily reach purely personal benefits provided to a government official in return for help arranging meetings or scheduling calls.
On the face of its ruling in McDonnell v. United States, the court was concerned with how to define an “official act” — the circumstances in which an official may be induced by financial reward to exercise authority to influence a government decision. Former Virginia governor Robert F. McDonnell did not deny that he had received gifts from a wealthy businessman, and he did not suggest that he had not then acted to get the businessman a hearing for his cause. McDonnell’s defense was that he was offering routine access to a supporter. Even if he was referring the supporter to others who would take official action, McDonnell insisted, he did not try to sway their decision one way or the other. It was up to others to decide what to do.
Choosing a narrowed reading of official action, the court sent the case back to the lower court to determine whether there was more to try, or whether a dismissal was warranted. It instructed the judges below that an elected or other official who arranges a meeting, telephone call or other “typical” type of access to the actual decision-maker — say, a regulator — has not, “standing alone,” engaged in an official act. More is now required to bring this referral activity within the bribery laws. The official who has received a personal financial reward for this assistance does not face prosecution unless he exerted pressure on other officials, or offered them advice with either the knowledge or the intention that these views would form the basis for the official action they eventually take.
The federal government had argued that such a holding would send a “terrible message” to the citizenry about pay-to-play politics. The chief justice answered with the interest he has shown before, in campaign finance cases, in allowing for officials to be responsive to constituents, or donors, as an essential feature of democratic life. He refers in the opinion to the “basic compact underlying representative government [that] assumes that public officials will hear from their constituents and act appropriately on their concerns. . . . ” The chief puts the emphasis on “assumes.” This assumption encompasses personal payments from the one seeking access to the official providing it.
But the word “access” appears nowhere in his opinion. At oral argument, it was uttered 11 times and was in the middle of key exchanges between counsel and bench. Evidently, perhaps in the interests of a unified opinion, the chief concluded that it was more prudent to refrain from mention of the word and a more explicit engagement with the question of the “message” it might be sending.
It would be natural to recoil at the outcome here. This is, after all, a case involving conduct the court describes as “distasteful.” How then to account for the unanimity of the outcome? One explanation is that the justices recognize that in addressing various conceptions of political corruption, the law has its limits. Trade-offs are inevitable: As Justice Stephen G. Breyer stated at argument, the line between accepted political and condemnable corrupt conduct “won’t be perfect,” and to prevent the abuse or misuse of laws that affect politics, government “will fail to catch some crooks.”
The decision in McDonnel l suggests that voters may have to take on more responsibility for catching the crooks — or voting them out of office. The protections afforded by voter vigilance and choice are certain to be imperfect. But in McDonnell, the chief justice insists — though with the most careful wording — that one person’s sleaze is another’s representative government.