The Supreme Court’s decision in Citizens United marches like a zombie precedent, destroying all in its path. First the case turned the law of campaign finance into a useless corpse. Now it appears the law of political bribery is the next victim. Citizens United let rich people buy candidates; now they may be able to purchase office-holders, too.
That’s the message from the Court’s argument last week in the appeal of Bob McDonnell, the former governor of Virginia. He was convicted, along with his wife, in a scheme that netted the onetime First Family of the Commonwealth about a hundred and seventy-seven thousand dollars in loans, vacations, and luxury goods from a Richmond businessman. And yet, while the statements of Justices during oral arguments are not always perfect predictors of how they will vote, there was clearly a great deal of bipartisan sympathy on display for this appalling former public servant.
At the core of Justice Anthony Kennedy’s 2010 opinion for the five-to-four majority in Citizens United was a simple idea: money is speech. In Citizens United, the Court, on First Amendment grounds, struck down a rule that banned corporations from sponsoring political advertisements in the period before elections. Such a “prohibition on corporate independent expenditures” was “a ban on speech,” Kennedy wrote.
In the McDonnell case, his lawyers argued that what federal prosecutors called bribery was also really just speech by Jonnie R. Williams, the McDonnells’ benefactor. Noel Francisco, McDonnell’s lawyer, did a skillful job of giving a constitutional gloss to the seedy facts of his client’s case. Williams plied the McDonnell family with expensive vacations, a Rolex watch, fifteen thousand dollars for their daughter’s wedding reception, the use of a Ferrari, and a hundred and twenty thousand dollars in loans in an effort to get the governor to promote Williams’s nutritional-supplement enterprise. According to Francisco, Williams was only paying for access (which is generally legal), not government action (which is not). As the lawyer put it in his oral argument, “The line is between access to decision-makers, on the one hand, and trying to influence those decisions, on the other.” In this view, it’s permissible for McDonnell to be paid for official access, just not for official acts.
The same concept is at the heart of both the Citizens United and McDonnell cases. In the campaign case, Kennedy said Congress could only prohibit quid-pro-quo corruption in regulating campaign contributions. Outside of a direct exchange of a contribution in return for a government action, the First Amendment protected the right to contribute money to campaigns. Likewise, McDonnell’s argument is that Congress can only prohibit bribery when there is an explicit quid pro quo—a payment or gift in return for a specific official act. In both cases, though, the Court seems determined to define quid pro quo so narrowly that it’s practically impossible to find.
Here, McDonnell’s lawyer argued, there was no quid pro quo because McDonnell did not take an official action on behalf of Williams’s supplements. All the governor did was host a luncheon to announce the launch of Williams’s new product and set up meetings for Williams with officials at the University of Virginia’s medical school. Any company would have welcomed this kind of advocacy from a governor, and anyway, according to Francisco, these actions did not amount to an “official act.” Though none of the Justices said so, this argument is absurd. No one could have missed the message that the governor was personally vouching for Williams’s products and wanted him treated favorably.
Justice Stephen Breyer seemed especially concerned about the other side of the charged quid pro quo. He appeared to assert that a conviction of McDonnell would criminalize normal interactions between citizens and government officials. “For better or for worse, it puts at risk behavior that is common, particularly when the quid is a lunch or a baseball ticket, throughout this country,” Breyer told Michael Dreeben, the Deputy Solicitor General, who represented the government. Wouldn’t a conviction here criminalize such trivial exchanges? No, Dreeben said, because “there is a very critical protection here. It's a requirement of showing something beyond a reasonable doubt to a jury.” If the amounts were trivial, jurors wouldn’t convict.
Dreeben did his best to turn the discussion from the Justices’ far-fetched hypotheticals to the actual facts of McDonnell’s case. “The crime here was the governor accepting things of value in return for being influenced and taking ‘official actions’ to legitimize, promote, and secure research studies for [Williams’s] products,” he said. He appeared to be having little luck. As in Citizens United, the Justices appeared heading toward requiring a specific and obvious quid pro quo—a formalism that ignored the workings of the real world. Campaign contributors and favor-seekers, as well as the recipients of their largesse, don’t need to be explicit about their corrupt bargains. But the Supreme Court, worried about the tender vulnerabilities of the fat cats and their prey, seems to be requiring a mindless (and unlikely) spelling-out of the details. The logical result is a deregulation of corruption, which a victory for McDonnell will only accelerate.
