The Supreme Court Might Be on the Brink of Making Corruption Easier—Again
05 Oct 2022 ( New Republic )
The Supreme Court’s decisions on abortion, guns, and climate change regulation in the past year have sparked outrage and upended decades-old laws and precedent. Public esteem for the high court has fallen to its lowest level in decades. But the court has an older set of decisions that are causing increasing problems, forcing Americans to tolerate a government saddled by corruption. Money pervades politics, but the court has shown a predilection for permissiveness, striking down any regulation that goes beyond targeting quid pro quo corruption—that is, money exchanged for a specific favor. And at the same time, the court has steadily restricted what counts as quid pro quo.
A new decision that would make the problem worse could be coming in the court’s new term.
The court believes it’s fine if a big donor gets special access to a politician. In their minds, this doesn’t count as a quid pro quo. In fact, “ingratiation and access” for donors is “a central feature of democracy,” Chief Justice John Roberts once wrote. Money in exchange for the politician arranging meetings with other officials doesn’t count as a quid pro quo either. It’s even okay for a donor to pay back the personal loan a candidate made to the campaign—taking money directly from the donor’s pocket and putting it into the candidate’s—after the candidate won the election and is about to take office. After all, the court said, that scheme doesn’t involve a quid pro quo.
The court’s decisions involving campaign finance and criminal corruption laws “are operating together to create a wild west environment,” said Tara Malloy, senior director of appellate litigation and strategy at the nonpartisan Campaign Legal Center. “We are seeing a pattern of cutting back on all manner of laws that protect the integrity of government.” Now the high court, which begins its new term this week, is set to hear a case that experts worry will make it even harder to get corruption out of government.
The case, Percoco v. United States, involves a top aide to then New York Governor Andrew Cuomo. It asks the court to decide whether it can be a crime for a public official to temporarily leave the government and, while still using his government office and phone and telling people he will be back in the government soon, accept money in exchange for pressing officials to do things.
The defendant’s argument, that he could not be guilty of bribery because he was technically a private citizen at the time, would “open a gaping hole in our public corruption laws,” said Daniel Tokaji, the dean of the University of Wisconsin Law School, who has written widely on election law. He envisions a scenario where a politician’s aide briefly steps down to run a campaign and makes a deal with a big donor: Give us $100,000 and I will make sure you get the state contract you want. “That’s bribery pure and simple. And yet if I’m understanding the petitioner’s argument correctly, that would be perfectly okay under their analysis,” he said.
There’s no indication yet what the Supreme Court will decide, but its choice to take the case is a sign that several of the justices may be prepared to side with the defendant, experts said.
The court’s decisions have already “made it very, very difficult for prosecutors to bring and win cases of bribery and other forms of corruption,” said Fred Wertheimer, president of Democracy 21, a nonpartisan organization that works to strengthen democracy. “The court has set the stage for an anything goes approach by its blindness to the way in which influence and results are bought and sold in our political system.”
The problems began in earnest with Citizens United v. Federal Election Commission, when the court held that only quid pro quo corruption was important enough to justify the government restricting money in politics. No other goal—whether cutting back on donors’ influence over politicians or leveling the playing field between candidates with a lot of money and those without—could support a campaign finance law. Justice Anthony Kennedy wrote in the majority decision that “the appearance of influence or access” for donors “will not cause the electorate to lose faith in our democracy.”
The court doubled down four years later. Chief Justice Roberts declared in a case called McCutcheon v. FEC that “the possibility that an individual who spends large sums may garner influence over or access to elected officials” is not something that campaign finance laws may try to avoid. “The Government may not seek to limit the appearance of mere influence or access.” The opinion announced that “ingratiation and access” for supporters is “a central feature of democracy.”
It wasn’t always this way. In 2003—back before Chief Justice Roberts joined the court and when Sandra Day O’Connor, the last justice with experience as a politician, was still on the bench—a majority of the court warned of a system that gave big donors special access to politicians.
“Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions,” the court said in its McConnell v. FEC decision, which mostly upheld a campaign finance law. It concluded that restrictions on money in politics were justified in “curbing undue influence on an officeholder’s judgment, and the appearance of such influence.”
Back then under Chief Justice William Rehnquist, the court had “a much more reasonable take on corruption, which was much more in line with the way the public thinks about corruption,” said Ciara Torres-Spelliscy, a professor at Stetson Law and a fellow at the Brennan Center for Justice. But those ideas no longer seem to have a place in the Roberts court, which “has really narrowed corruption to quid pro quo,” she said.
“I think they have this sort of cartoonish notion that someone who wants something from the government shows up with a bag of cash with a literal dollar sign on it and they give it to a member of Congress, who changes their vote that day because of that bag of money,” she said. “And that is a very narrow way of thinking about political corruption.”
But the Roberts court hasn’t merely restricted laws aimed at preventing corruption—it has also limited laws that punish corruption after it occurs.
In the early 2010s, when Bob McDonnell was governor of Virginia and heavily in debt, he accepted tens of thousands of dollars in loans from Jonnie Williams, the CEO of a company developing a dietary supplement. Besides the loans, Williams took McDonnell’s wife on a $20,000 shopping spree on Fifth Avenue, let the governor use his Ferrari, bought the governor a Rolex, and covered the cost of McDonnell’s daughter’s wedding reception. McDonnell, meanwhile, instructed state officials, who were in the position to initiate a research study that would help Williams’s company, to meet with Williams. McDonnell’s staff organized an event to promote the supplement, and the governor spoke in support of it.
A jury found McDonnell guilty of several corruption-related offenses. But the Supreme Court unanimously overturned the conviction.
Under the law, prosecutors had to prove that McDonnell made an “official act” in exchange for Williams’s gifts—it had to show McDonnell provided a “quo” in exchange for Williams’s “quid.” The Supreme Court said McDonnell’s actions didn’t count.
Instead, the court narrowed the definition of an “official act,” demanding that it “involve a formal exercise of governmental power.” For McDonnell, for example, an official act could have been making a formal decision to actually initiate a research study. While the court added that pressuring another official to order the study might be an “official act,” a governor who just sets up the meetings, attends events, and expresses support for the product wasn’t enough.
It was the latest decision in which the court “seems to fail to understand how politics in America works,” Wertheimer said.
“The ordinary American fully understands when someone providing a gift is attempting to buy undue influence with a public official. The Supreme Court doesn’t seem to understand that, or doesn’t believe that it justifies regulation,” he said.
That wasn’t its only decision restricting laws aimed at corruption. In 2010, it partially overturned Enron CEO Jeffrey Skilling’s conviction for honest services fraud, limiting application of the law often used to prosecute government officials. A decade later, it overturned the fraud convictions of the “Bridgegate” defendants, who diverted traffic lanes leading to the George Washington Bridge in New Jersey, apparently for political retaliation. The court again narrowed the reach of the laws at issue, holding that because the schemers weren’t trying to obtain money or property, they couldn’t be convicted under those fraud laws.
Viewed individually, each of those decisions makes some sense. They rested on concerns about making sure laws aren’t interpreted so liberally that people don’t know ahead of time whether their actions will be criminal. They also involved ideas about federalism—letting states, not the feds, take the lead on these kinds of prosecutions. And unlike the campaign finance cases, they attracted support from justices across ideological lines. The McDonnell and Bridgegate decisions were both unanimous. Tokaji, of the University of Wisconsin Law School, disagrees with other experts on whether the McDonnell decision was a problem for keeping politicians honest. He said it was a reasonable decision that might even make prosecutions easier by adding clarity to the law.
But viewed as a whole, the cases are more concerning. “These decisions have really narrowed the tools prosecutors have to combat official corruption as well as limited the public’s ability to ensure ethical government,” Malloy, of the Campaign Legal Center, said.
There is more money sloshing around politics now than ever before. In 2000, the average winner of a House election spent $840,000 on their campaign, according to the nonprofit OpenSecrets. Twenty years later, that number was $2.35 million. At the same time, prosecutors bring fewer and fewer corruption cases, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University. After hitting a peak of more than 900 federal prosecutions nationwide in 1998, prosecutors brought fewer than 500 corruption cases in 2017, the year after the McDonnell decision. The number fell below 400 the next year and stayed low until an uptick last year.
Those totals demonstrate there are still hundreds of corruption prosecutions each year. Many are still upheld on appeal too.
There are plenty of reasons why prosecutors are bringing fewer corruption charges these days—from prioritizing other types of crimes to the pandemic slowing a wide range of prosecutions. But because of the Supreme Court’s decisions, Wertheimer said, “We probably have lots of unknown examples where cases weren’t brought.”
Percoco could cause even more problems for corruption prosecutions. The case concerns Joseph Percoco, who stepped down from his government job to manage Cuomo’s reelection campaign in 2014. Despite officially being a private citizen while working on the campaign, Percoco continued using his government office, calling state officials from the office phone and telling people he would return to the government after the election.
While he was on the campaign, a real estate developer funneled two payments totaling $35,000 through an intermediary to Percoco’s wife. After the payments and days before he officially returned to government, Percoco used the government phone in his former government office to call a state official and urge him to waive a labor requirement that could have driven up costs for the developer. The state official told a higher-up that he was facing “pressure” from his “principals.” The agency ultimately agreed to waive the requirement.
At the high court, Percoco argues that what he did was no different than what a lobbyist does—he was a private citizen using his influence to try to benefit the people paying him. Just because he had influence, he argues, did not mean that he was a public official, or that he had the duty to act in the public interest that public servants do.
Tokaji said that argument “just disregards how politics actually works.” There are often officials who temporarily step out of the government but, in reality, retain their power, he said. “To ignore that reality would be to tacitly approve public bribery.” Counsel for Percoco did not respond to a request for comment.
A date has not yet been set for argument in the case. The court is expected to issue its decision by next summer. If it continues its pattern of what Torres-Spelliscy calls “deregulating corruption,” experts say it will only become harder to make sure that public officials are acting in the interests of the public, rather than their donors.SEE THE ORIGINAL ARTICLE