In a New York Times op-ed, Zephyr Teachout analyzes the corruption case of former Virginia Governor Bob McDonnell heard this week by the U.S. Supreme Court.
This week, the Supreme Court heard McDonnell v. United States, the case of Bob McDonnell, the former governor of Virginia who is appealing his 2014 conviction for public corruption. Although the court’s ruling is not expected until June, in Wednesday’s hearing several justices seemed set on undermining a central, longstanding federal bribery principle: that officials should not accept cash or gifts in exchange for giving special treatment to a constituent.
Justice Stephen G. Breyer dismissed the idea that, in the absence of a strong limiting principle, federal law could criminalize a governor who accepted a private constituent’s payment in exchange for intervening with a constituent problem. Justice Samuel A. Alito Jr. expressed disbelief that an official requesting agency action on behalf of a big donor would be a problem. A majority seemed ready to defend pay-to-play as a fundamental feature of our constitutional system of government.
The former governor has claimed on appeal that he had a First Amendment right to accept these gifts. He also disputed that holding meetings, hosting events at the governor’s mansion and recommending research were “official acts.” There were quids, he argued, but no quos.
And the justices seem poised to agree. Their main worry appeared to be that Mr. McDonnell’s prosecution had criminalized what they perceived as normal, day-to-day political behavior — seemingly more concerned for the chilling effect of federal bribery law on an elected official who accepts a Rolex than for the citizens who are hurt by such self-serving behavior.
To overturn the McDonnells’ convictions, however, would also overturn more than 700 years of history, make bad law and leave citizens facing a crisis of political corruption with even fewer tools to fight it.
In its Citizens United ruling, the court gutted campaign finance laws. It acknowledged that American politics faced the threat of gift-givers and donors trying to corrupt the system, but it held that campaign finance laws were the wrong way to deal with that problem; bribery laws were the better path. Now, though, the court seems ready to gut bribery laws, saying that campaign finance laws provide a better approach. But if both campaign finance laws and bribery laws are now regarded as problematic, what’s left?
With the Supreme Court apparently imagining that there is some other, simple-to-enforce bribery law, 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 the Virginia delegate George Mason, “our government will soon be at an end.”
Today, Virginia’s former governor proposes that there is a “fundamental constitutional right” to buy and sell access. If the court finds in his favor, it will have turned corruption from a wrong into a right.