As I read the transcript of Wednesday’s Supreme Court oral arguments in the corruption case of the former Virginia governor Bob McDonnell, I thought of the movie “Wayne’s World.” There’s a scene halfway through the film in which Wayne and Garth, the lovable public-access TV hosts, argue with Benjamin, the slick corporate producer, about giving their sponsor airtime. As they make their case against selling out, Wayne and Garth serve as pitchmen. “I will not bow to any sponsor,” Wayne says, sticking his hand into a Pizza Hut box and pulling out a slice. Before the Court this week, McDonnell’s lawyers made a similarly convincing claim that he couldn’t be bought.
The facts of McDonnell’s case aren’t really in dispute: between 2011 and 2012, McDonnell and his wife accepted more than a hundred and seventy-five thousand dollars’ worth of gifts—including a fifty-thousand-dollar loan, a twenty-thousand-dollar shopping spree in Manhattan, free vacations, lavish meals, and fifteen thousand dollars in cash—from Jonnie Williams, a Virginia businessman who wanted McDonnell’s help getting Virginia public universities to study his company’s diet supplement, Anatabloc.
The question before the court this week was not whether McDonnell took the quid—but whether he delivered the quo. McDonnell was convicted, in 2014, on eleven federal corruption charges. The law required prosecutors to prove that McDonnell performed an “official action” in return for payment. While Williams never got the drug study he wanted, McDonnell did arrange meetings between Williams and state officials. McDonnell also hosted a launch party for Anatabloc at the governor’s mansion, and once pulled out a bottle of Anatabloc during a meeting with the head of the state-employee health plan and suggested that state employees start taking the supplement. The legal issue from the start was whether those favors amounted to “official action.”
On Wednesday, Noel Francisco, the lawyer representing McDonnell, argued that while the former governor may have given Williams access to officials, he never tried to influence those officials’ decisions, and therefore hadn’t crossed the line into official acts. Deputy Solicitor General Michael Dreeben, meanwhile, representing the United States, maintained that exchanging meetings for cash, on its own, counts as bribery.
At least some of the Justices, most vocally Stephen Breyer, seemed clearly on McDonnell’s side. And while McDonnell’s particular case involved gifts and vacations, the underlying concern for the Court, for much of day, was campaign contributions. Because a donation to a campaign can count as a bribe, and because giving extra access to big donors is ubiquitous, finding McDonnell’s favors to Williams to be “official acts” could threaten to criminalize a wide range of campaign fund-raising practices. This idea has been part of the case all along. In 2014, one of the juror instructions that McDonnell’s lawyers proposed at trial was lifted from the Supreme Court’s decree, in its 2010 decision in Citizens United, that “ingratiation and access . . . are not corruption.”
The irony is that, as Dreeben pointed out to the Court, that phrase was actually meant to distinguish a politician’s legitimate feelings of “general gratitude,” as the Court put it in a 2013 case, from the impermissible act of swapping a political favor for money. In Citizens United, the Court itself noted that contributions like the two million dollars paid by the dairy industry to Richard Nixon’s Presidential-campaign fund so that it could discuss price controls with Nixon would today be considered a bribe. And yet the Justices’ chilly response to Dreeben’s argument suggests that, at this point, they’re not interested in policing the line between “general gratitude” and quid-pro-quo corruption.
The Justices worried that if they defined “official acts” too broadly, the difference between lawful and unlawful behavior would be left entirely to the judgment of federal prosecutors. Because every politician in the country would then be a potential target, the Justice Department would have too much discretion to pick and choose cases. As Jeffrey Toobin wrote last year about the former Alabama governor Don Siegelman, currently in prison for appointing a campaign donor to a regulatory board, “Thanks to the courts, the line between illegal bribery by campaign contribution and the ordinary business of politics has all but disappeared. Throwing a man in prison for activity at the murky barrier between the two is simply unjust.”
The idea that American politics is pervasively corrupted by money is not a fringe position. That doesn’t mean Breyer is wrong to fear that a victory for the government would give prosecutors too much power to select their targets. But there’s an unstated premise at work here: even if some elected officials are charged for campaign-finance quid pro quo, no one will stop trading access for donations. You and I might violate federal copyright laws by illegally downloading a movie, but if we’re unlucky enough to get charged we can’t use “everybody does it” as a defense. The threat of harsh federal penalties is supposed to keep people from breaking the law, even if the chances of getting caught are slim. That logic evidently doesn’t apply to politicians, in the Court’s view, because the practice of selling access is so thickly embedded in American political culture that they simply can’t stop doing it. As Benjamin tells Wayne and Garth, “I’m sorry you feel that way, but basically it’s the nature of the beast.”