Symposium: Upending the long-settled law of politics

Hampton Dellinger is a partner in the Washington, D.C., office of Boies, Schiller & Flexner LLP.

In Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, the Supreme Court retracted congressionally enacted floodgates meant to curb money in politics. In the case of former Virginia governor Robert McDonnell, the Justices faced the question of what deep-pocketed corporations and individuals – willing to offer campaign contributions or personal gifts to a public servant in an understood exchange for that official’s help – can lawfully buy. The Court’s unanimous answer: a lot.

In creating a safe harbor for givers and takers to avoid prosecution under federal anti-corruption statutes covering bribery and extortion, the Court was drawn to several characteristics of modern political discourse including sound bites (three references to “Bob’s for Jobs”), straw men (how can the president still host a title-winning sports team if the conviction here is upheld?), and ignoring the heart of the issue presented (whether governmental acts, whether fundamental or tertiary, can literally be for sale). That eight Justices would condone conduct rejected by so many voters, not to mention judges and juries across America, seems a testament to skilled lawyering for McDonnell, who served as the governor of Virginia from 2010-2014.

The governor’s appellate defenders focused not on whether he agreed to trade political favors for financial favors but instead on what the political favors were. In writings (including an amicus brief filed by a bi-partisan group of former White House counsel) and at oral argument, McDonnell’s supporters sought to laser focus the Court on the issue of what constitutes an “official act” – specifically, “[w]hether ‘official action’ under the controlling fraud statutes is limited to exercising actual government power, threatening to exercise such power, or pressuring others to exercise such power.” In answering “yes” and circumscribing the definition of what constitutes “actual governmental power,” the Court elided the fact that the acts in question – legally “official” or not – were done in exchange for money and gifts according to evidence submitted to and apparently believed by the jury.

Political corruption cases, of course, invariably involve allegations of a quid pro quo. Chief Justice John Roberts, writing for the Court, blithely refers to the quids at issue in McDonnell’s case as constituting “tawdry tales of Ferraris, Rolexes, and ball gowns.” But the gifts were far from fictional and the donor was no boyhood friend. Beginning in 2009 (when he first met McDonnell just after McDonnell’s gubernatorial election) through 2012, the governor’s benefactor plied him and Virginia’s First Lady with cash infusions and gifts that kept the McDonnells solvent (the couple was in dire financial straits), entertained (on golf outings and vacations), and literally well-fed (the donor covered the catering bill at the wedding of McDonnell’s daughter). The Ferrari use, Rolex bequest, and ball gown offer from the donor to the McDonnells were also all too real.

The quos supplied by the governor including initiating discussions about whether Virginia universities should devote research funds to studying the donor’s purported pharmaceutical product and whether Virginia’s state employee health plan should pay for the drug. Drawn into the governor’s efforts were state cabinet officers and senior staff. In vacating his conviction, the Court focused on the fact that McDonnell’s activities were routine: “[C]onscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”

What the Court and McDonnell’s defenders ignore is the evidence suggesting that he took action in knowing exchange for the financial beneficence. It is the understood agreement that has formed the linchpin of federal anti-corruption law for decades. The political bribery statute, for example, criminalizes accepting items of value “in return for being influenced in the performance of any official act (emphasis added).” Yet, the Court refused to wrestle with evidence of the missing link. According to the opinion:

Williams testified that he had given the gifts and loans to the McDonnells to obtain the Governor’s “help with the testing of Anatabloc [a drug the donor’s company was developing] at Virginia’s medical schools. Governor McDonnell acknowledged that he had requested loans and accepted gifts from Williams. He testified, however, that setting up meetings with government officials was something he did “literally thousands of times” as Governor, and that he did not expect his staff “to do anything other than to meet” with Williams.

So Roberts describes the “this.” And Roberts describes the “that.” But he leaves out the “for.” The omission makes all the difference because the most important part of any “quid pro quo” is the “pro.” In McDonnell’s case, the jury was presented with evidence that the governor accepted financial favors and, “in return,” promised some type of action. The thousands of freely arranged meetings the Court notes (twice) are assuredly innocuous but they are also irrelevant because there is no evidence that the beneficiaries offered to pay for them or were charged for the courtesy. To state what seems obvious: a plethora of legal acts does not absolve someone from the occasional illegal act. In an ungridlocked Congress, House members and senators would cast votes continuously. And they may lawfully do so in the fervent hope that their actions will be well received by many including the well heeled. As long as the electeds don’t cast their vote based on any real-time agreement (via “winks and nods” or otherwise) with a putative or actual gift giver, it is called representative democracy, rather than a felony. The difference between “a campaign contribution in the past” and one in the present (i.e., a quid pro quo) may feel like a thin reed but heretofore it has made all the structural difference as a matter of law.

As a substitute for the generally bright line offered by requiring evidence of an understood exchange, the Court now promises salutary effects by having lawfulness turn on what the politician is proffering. Still prohibited would be charging for an actual “determination before an agency” or the votes associated with “a hearing before a committee.” Presidential vetoes and congressional floor votes are also thankfully not for sale. But meetings, phone calls, and agenda setting are now arguably immunized from prosecution even if donors or recipients put a price tag on them.

The Court takes comfort in analogizing the political favors at issue in McDonnell’s case to activity for which criminalization would be nonsensical: photo ops and trinkets on the one hand, and pursuing broad policy goals (such as “Virginia business development”) regularly sought by interest groups and individuals on the other. But the fit seems an uncomfortable one. Prosecutorial discretion should keep truly trivial matters unindicted while the First Amendment should protect financial support in exchange for broad public policy promises (whether pro-choice or pro-gun or pro-Israel).

McDonnell’s case didn’t have to end this way. The Justices could have focused their sights on the presence or absence of an agreement between the governor and the businessman. Certainly, the Fourth Circuit’s finding that the “[t]he temporal relationship between the ‘quids’ and ‘quos’” was “compelling evidence of corrupt intent” could have been challenged. Maybe there was insufficient evidence of a meeting of the minds. Or maybe the trial judge erroneously allowed the jury to hear about financial favors the governor accepted from other donors, ones to whom he didn’t grant political favors. Or maybe it would have been more fair to try the governor and the First Lady separately. But whether on account of stellar advocacy, the distasteful sight of elected officials as criminal defendants, or otherwise the Supreme Court as one took another path.