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Symposium: McDonnell decision substantially weakens the government’s ability to prevent corruption and protect citizens

Fred Wertheimer is President of Democracy 21.

The United States Constitution provides a “right of the people…to petition the Government for a redress of grievances.” It does not say that a citizen can be charged a fee for exercising that right.

But, in essence, here’s what a unanimous Supreme Court said yesterday in interpreting a federal law enacted to protect the integrity of government and of the right to petition:

Citizen X meets with her representative to ask for help in setting up a meeting with a government agency. The representative says I’m happy to set up the meeting if you give me a check for $15,000. No check, no meeting.

The American people clearly would see this as selling your office for personal gain.

The Supreme Court pointed to the routine actions that officeholders undertake for constituents in finding that the facts of McDonnell v. United States do not fall within federal laws designed to ensure that officeholders provide “honest services.” But there was nothing “routine” about what happened in this case.

Officeholders do not “routinely” get Rolex watches or $20,000 worth of designer clothes in return for setting up meetings or doing other kinds of similar services for constituents. Officeholders do not charge large amounts for providing “routine services” to constituents.

The Supreme Court in this case leaned over backwards to protect officeholders and pretty much ignored the interests of citizens in honest government and the dangers of allowing officeholders to sell their office. The Court also ignored the right of citizens to “petition” officeholders without having to pay fees for assistance.

The Court’s decision opens the door to a corrupt “pay to play” culture in government so long as the official receiving the benefits does not make an actual government decision or take an official government action in response to the benefits given. But short of an official action, the Court has said that it is perfectly legal for an officeholder to exchange access and various types of other actions in return for financial benefits going into the officeholder’s pocket.

In so doing, the Court has substantially weakened the legal protections that currently exist against government corruption.

Everyone, including the Court, agrees the facts in this case are “tawdry.” Jonnie Williams, whose business was to market a nutritional supplement he had developed, gave Governor Bob McDonnell and his wife numerous lavish gifts – a Rolex watch, $20,000 worth of designer clothes, a $10,000 wedding gift, $15,000 in wedding expenses, a $50,000 loan, and more. These were not innocent gifts to a friend, offered without strings attached. Williams was quite clear that these gifts were about his business and that he needed “help” from McDonnell to promote his product.

In return for the gifts, McDonnell took several specific actions to help Williams market his nutritional supplement. McDonnell agreed to introduce Williams to Virginia’s secretary of health and human resources. He asked the secretary to send an aide to meet with Williams. He hosted a lunch event to feature Williams’s company, at which free samples of the nutritional supplement were distributed. He asked state university researchers at the event whether there was reason to explore the supplement further. He touted the benefits of the nutritional supplement in a meeting with top state advisers to discuss the state’s health plan, and asked those advisers to meet with company representatives.

To the American people, all this would seem to be the essence of government corruption – simply put, trading financial benefits for assistance from an officeholder. There is little reason to doubt that a corrupting bargain was at work in the dealings between McDonnell and Williams.

Yet the Court found that there was nothing sufficiently formal or official about the actions taken by McDonnell to bring these sordid dealings within the statute that requires government officials to provide “honest services.” None of this, the Court concluded, rises to the level of official government action within the scope of the anti-corruption law.

In so ruling, the Court has disarmed the ability of the American people to prevent similar kinds of corrupt practices in the future. This decision is bound to further undermine the already low level of confidence that citizens have in their officeholders and government.

Thus, the Court’s decision narrowly reads the “honest services” statute to allow a public official to freely receive lavish gifts from a businessman who is seeking government promotion and help for his business, and in return to set up meetings and provide access to and help with other officials for the businessman.

This means, for instance, that it is now okay under the laws involved in this case for elected officials to charge money for the opportunity to meet with them or members of their staffs. Indeed, arranging meetings with other government officials, directions to staff to look into a matter, and phone calls from an officeholder urging agency officials to give a matter further study can be overtly sold to those interested in a government outcome.

The Court put the best spin it could on McDonnell’s actions by dryly summarizing what he did in exchange for lavish gifts as “arranging meetings, hosting events and contacting other government officials.”

But far from being the kind of minor and innocent courtesy that the Court makes it out to be, the obtaining of access to government officials and the opportunity to influence their decisions is central to influence peddling. And when that access to, say, a member of the governor’s cabinet, is arranged by a call from the governor himself, the favor-seeker has an important head start in obtaining the official action he wants. And that head start was purchased by the favor-seeker with the expensive gifts and benefits he provided to the governor.

It is true, of course, that a governor or other high-level official could arrange a meeting for a constituent or business leader as a matter of common courtesy and within the normal course of government business. Thus, the Court may be right that the kinds of actions McDonnell took are something that government officials do routinely, and non-corruptly. As the Court said, “conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time.”

The facts in this case, however, do not portray a “conscientious public official” engaging in the routine activities of the job. They portray a brazen exchange of very substantial financial benefits given in return for help from an officeholder to promote his benefactor’s business product within the government headed by the officeholder.

While elected officials can be expected to share the views of their political supporters and constituents, it is not “responsiveness” for an officeholder to promote the views of a constituent in return for being showered with gifts, thousands of dollars’ worth of expensive clothing for their spouses, and tens of thousands of dollars of loans.

It is corrupt practices.

It is behavior that increases the public view that the system is rigged to allow those who pay the piper to call the tune.

Since the Court’s decision is a matter of statutory construction, the damage done by the decision, in theory, can be repaired by Congress. It should do so promptly. This will be a tough fight, however, since the statute to be strengthened governs the members of Congress who must fix the law.

The American people are already deeply suspicious of whether government officials have their best interests in mind. The idea that an officeholder can “legally” sell access to and assistance with government officials in exchange for expensive gifts and cash only serves to increase public cynicism and disaffection with government.

Recommended Citation: Fred Wertheimer, Symposium: McDonnell decision substantially weakens the government’s ability to prevent corruption and protect citizens, SCOTUSblog (Jun. 28, 2016, 12:38 PM),