Corruption came into being the moment mankind learned that a few men could hold sway over most other men. It became known as power—the powerful few controlling the lives, even the very existence, of the powerless majority. It didn’t take long for the powerless to realize that if they bestowed gifts upon the powerful, the powerful would look upon them with favor. No gifts, no benefits became the order of the day.
A mid-16th century medical term describes the process: quid pro quo (something for something). Four centuries earlier the process became known in the rule of law as bribery.
In an Op-Ed piece published in The New York Times on April 29, 2016, Fordham University law professor and author of “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United,” Zephyr Teachout, wrote that the legal principles of bribery “date from England’s Statute of Westminster of 1275, which said no officer of the king should take payment for his public duties except what was owed by the monarch.”
Governor Robert McDonald of Virginia
Former Virginia Governor Robert F. McDonnell was convicted in September 2014 on federal corruption charges that he accepted gifts and loans (golf outings, lavish vacations and a $120,000 in what was characterized as “sweetheart loans in exchange for five “official acts” that benefitted a political supporter and campaign donor. He was sentenced in January 2015 to two years in prison followed by two years of supervised release.
McDonnell was indicted, and convicted, under the federal bribery statute, Hobbs Act, and honest-services fraud statute found in 18 U.S.C. §§§ 201, 1951, 1346. These statutes make it a felony for an elected official to agree to take “official action” in exchange for money, campaign contributions, or any other thing of value” (here, here, here, and here).
The former governor’s appeal was denied at the lower appellate level but his case was accepted for review by the Supreme Court. The question the Court agreed to hear, as stated in McDonnell’s 72-page certiorari petition, is whether “official action” is “limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and the honest-services fraud statute are unconstitutional.”
The McDonnell case could have unforeseen implications similar to Citizens United which has turn political elections into a game of the highest bidder.
Professor Teachout sees facts of the McDonnell case through a narrow lens: Johnnie R. Williams, Sr., owned and promoted a supplement called Anatabloc. The professor said the “governor eagerly promoted Mr. Williams’s product” in exchange for “expensive vacations, a Rolex, a $20,000 shopping spree, $15,000 in catering expenses for a daughter’s wedding and tens of thousands in private loans.”
Professor Teachout added “there was ample evidence of connection between the favors and the governor’s action. In one instance, Mr. McDonnell emailed Mr. Williams asking about a $50,000 loan, and six minutes later sent another email to his staff, requesting an update on Anatabloc scientific research. For the jury, that was more than enough to find Mr. McDonnell guilty.”
Quid Pro Quo or Routine Political Activities
McDonnell’s attorneys see the facts of the case through a different, broader lens. They informed the Supreme Court that the former governor’s “official acts” were “limited to the most routine political activities: arranging meetings, asking questions, and attending events. There is no dispute that Governor McDonnell never exercised any governmental power on behalf of his benefactor, promised to do so, or pressured others to. As the only staffer who met with the alleged bribe-payor during the supposed conspiracy testified: The Governor never ‘interfere[d]’ with her office’s ‘decision-making process.’ To overcome this failure of proof, the Government persuaded the lower courts to disregard every relevant constitutional principle and stretch the corruption laws beyond recognition. Despite bribery’s age-old confinement to the abuse of actual sovereign-power, the lower courts held that asking about a policy, arranging a meeting to discuss a policy, or appearing at an event where a policy is mentioned are ‘official’ acts ‘on’ that policy because such acts could, hypothetically, ‘have the purpose or effect of exerting some influence.”
Supporters of Defense File Amicus Briefs
In short, McDonnell’s attorneys are saying that if the governor’s conviction is allowed to stand, the Government will have the power to criminalize virtually every routine exchange between an elected official and a constituent under a bribery conspiracy theory. McDonnell’s position has drawn the support from an impressive array of seventeen prominent groups through amicus briefs, including 77 former U.S. Attorneys General and the National Association of Criminal Defense Lawyers.
The Supreme Court has held that under the Hobbs Act, “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”
Appearance of Impropriety Not Impropriety
The former governor, and his supporters, seek to narrow this holding with a viable argument that he had a First Amendment right to accept the gifts from Mr. Williams so long as he did not take any official actions that benefitted the donor; in effect, that the appearance of impropriety is not an actual impropriety.
Professor Teachout wrote that at least two justices (one liberal, one conservative) seem to agree with the McDonnell argument.
The professor wrote that Justice Stephen G. Breyer said he could not believe the Government could criminalize a “private constituent’s payment in exchange for intervening with a constituent problem;” and that Justice Samuel A. Alito Jr. also expressed “disbelief that an official requesting agency action on behalf of a big donor would be a problem.”
Fewer Tools to Fight Corruption
The professor said that if these views carry the day and McDonnell’s conviction is reversed, “700 years of history” would be overturned and “leave citizens facing a crisis of political corruption with even fewer tools to fight it.”
That’s a disturbing assessment.
Professor Teachout explains:
“…only the most unsophisticated criminal would ever get caught. A clumsy influence seeker might write an email offering ‘five diamonds for five votes in Congress,’ but the powerful corrupting forces in our society would avoid explicit deals and give lavish gifts tied to meetings and speeches, winking and nodding all the while.”
As the professor pointed out, Citizens United “gutted campaign finance laws,” making it easier for “super pacs” to buy politicians in order to own the government. The Citizens United majority reasoned that political “corruption” would be held in check by existing bribery laws.
What happens if the McDonnell court guts bribery laws, as Professor Teachout fears?
Corruption Threatens Responsible Government
“With the Supreme Court apparently imagining that there is some other, simple-to-enforce bribery law,” the professor reasoned, “we citizens are left empty-handed. This is the first case since Justice Antonin Scalia’s passing to directly address what corruption is; the issue is a critical test of the court. At the Constitutional Convention in 1787, the framers devoted themselves to building a system that would be safe from moneyed influence. ‘If we do not provide against corruption,’ argued Virginia delegate George Mason, ‘our government will soon be at an end.’”
It will not be a good day for those who believe in an honest legal system if the McDonnell court, as Professor Teachout suggests, bestows a fundamental First Amendment right to “buy and sell” government access.
As defense attorneys, we are always concerned about prosecutorial overreach, the Government’s ever-increasing tendency to criminalize any behavior remotely suspicious, but, as good citizens, we know that granting a constitutional right to an elected public official to accept “payment” in exchange for “intervening” in a constituent’s concern would effectively legitimize payola.
We will wait until the Court rules before forming a fixed opinion about the case.