Statutory Interpretation
McDonnell v. United States
Most people would assume that giving $175,000 in loans, gifts, and other benefits to a sitting governor while trying to secure his stateâs help in launching your business would be unequivocally illegal. Most people would now be wrong, despite thirty-eight states prohibiting the receipt of an equivalent amount in campaign contributions.1×1. See Contribution Limits Overview, Natâl Conf. St. Legislatures, http://www.ncsl.org/research/elections-and-campaigns/campaign-contribution-limits-overview.aspx [https://perma.cc/KT9L-5XQS]. Last Term, in McDonnell v. United States,2×2. 136 S. Ct. 2355 (2016). the Supreme Court held that the federal bribery statuteâs definition of âofficial actâ does not include âarranging a meeting, contacting another public official, or hosting an eventâ without the presence of something âmore.â3×3. Id. at 2367â68. The Court emphasized the consequences of a broader interpretation, but failed to consider existing limitations on federal anticorruption laws and the decisionâs potential to further undermine participation in the democratic process by facilitating the appearance of corruption. However, the resulting definition still encompasses pressuring others to take an official action, taking initial steps toward an official action, and giving advice that will form the basis of an official action. These qualifications reduce the likelihood that the decision will hamper future prosecutions.
Robert McDonnellâs campaign for Virginia Governor focused on job growth, and Jonnie Williams thought he could advance that agenda.4×4. See id. at 2361â62. McDonnellâs primary slogan was âBobâs for Jobs.â Id. at 2361. Williams headed Star Scientific, a Virginia company developing a nutritional supplement called Anatabloc.5×5. Id. at 2362. Star needed research showing the drugâs health benefits, which Virginiaâs public universities could perform if they received state grants.6×6. Id. The two men were introduced during McDonnellâs 2009 campaign, and shortly thereafter the businessman asked McDonnell for help.7×7. Id. McDonnell agreed to introduce Williams to Virginiaâs Secretary of Health and Human Resources.8×8. Id. A few months later, McDonnellâs wife Maureen suggested Williams sit next to her husband at a rally, and Williams bought her $20,000 worth of designer clothing as thanks.9×9. See id. Over dinner at the governorâs mansion, the three then discussed the proposed studies.10×10. Id.
At the same time, the McDonnellsâ longtime money problems became acute.11×11. See id. Mrs. McDonnell told Williams that her husband said, âitâs okay for me to help you . . . but I need you to help me.â12×12. Id. at 2362. Williams consequently gave the McDonnells $65,000.13×13. Id. at 2362â63. Most of the money was a loan, but some helped pay for the wedding of one of the McDonnellsâ daughters. Id. The Governor began to set up more meetings for Williams with state agencies, and Williams lent the McDonnells his vacation home and Ferrari.14×14. Id. at 2363. At Mrs. McDonnellâs suggestion, he also purchased the Governor a Rolex.15×15. Id.
In August 2011, Governor McDonnell held a lunch with university researchers to launch Anatabloc.16×16. Id. McDonnell spoke to the researchers about the âscientific validityâ of the supplement, âwhether or not there was any reason to explore this further,â and if it might âbe something good for the Commonwealth.â Id. Afterward, the McDonnells asked for a $50,000 loan, but Williams complained about the lack of progress.17×17. Id. at 2363â64. Mrs. McDonnell emailed the Governorâs counsel to express the Governorâs desire âto get this going,â and Governor McDonnell held another reception for researchers.18×18. Id. at 2364. The money arrived âshortly thereafter,â and the Governor then suggested the inclusion of Anatabloc in the stateâs employee healthcare plan to a cabinet secretary and agency head.19×19. Id. Over the next few months, Williams provided McDonnell with a third loan, golf outings, and a vacation.20×20. Id. These gifts came on top of a $10,000 wedding present to a McDonnell daughter. Id.
In January 2014, federal prosecutors indicted the by-then-former Governor.21×21. Id. McDonnell was indicted under several anticorruption statutes. Id. at 2365 (citing 18 U.S.C. § 1014 (2012) (false statement); 18 U.S.C. §§ 1343, 1349 (honest services fraud); 18 U.S.C. § 1951 (Hobbs Act extortion)). Maureen McDonnell âwas indicted on similar charges, plus obstructing official proceedings.â Id. The primary charges of honest services fraud and Hobbs Act extortion reflected the governmentâs belief that Williams bribed McDonnell.22×22. The honest services fraud statute criminalizes âfraudulent schemes to deprive another of honest services through bribes or kickbacks.â Id. at 2365 (citing Skilling v. United States, 561 U.S. 358, 404 (2010)). The Hobbs Act prohibits obtaining property âunder color of official right,â 18 U.S.C. § 1951, and the Court has interpreted the statute to encompass âtaking a bribe.â McDonnell, 136 S. Ct. at 2365 (citing Evans v. United States, 504 U.S. 255, 260, 269 (1992)). The parties stipulated that terms within both the honest services fraud and Hobbs Act extortion statutes would be defined by reference to a federal statute prohibiting bribery: 18 U.S.C. § 201.23×23. McDonnell, 136 S. Ct. at 2365. Though not referenced by the Court, 18 U.S.C. § 666 also prohibits the bribery of state officials. Most relevant to his ultimate appeal was whether Governor McDonnell had ââreceive[d] or accept[ed] anything of valueâ in return for being âinfluenced in the performance of any official act.ââ24×24. Id. (quoting 18 U.S.C. § 201(b)(2)). The bribery statute defines an âofficial actâ as âany decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such officialâs official capacity, or in such officialâs place of trust or profit.â25×25. 18 U.S.C. § 201(a)(3). Prosecutors alleged at least five such acts centered on the meetings and events McDonnell set up for Williams.26×26. McDonnell, 136 S. Ct. at 2365â66.
After trial, the district court gave the governmentâs proposed jury instruction, which added to the statutory definition the admonition that âofficial actâ included ââacts that a public official customarily performs,â including acts âin furtherance of longer-term goalsâ or âin a series of steps to exercise influence or achieve an end.ââ27×27. Id. at 2366. The court rejected Governor McDonnellâs suggested qualifications, including that customary duties, âarranging a meeting,â or âhosting a receptionâ could not â on their own â be official acts.28×28. Id. (quoting United States v. McDonnell, 792 F.3d 478, 513 (4th Cir. 2015)). The court also declined to require that the officeholder intend to âinfluence a specific official decision the government actually makes.â29×29. Id. (quoting Petition for a Writ of Certiorari app. I at 147a, McDonnell, 136 S. Ct. 2355 (No. 15-474)).
The jury convicted McDonnell on all counts except the false statement charge.30×30. Id. The jury that convicted Governor McDonnell also found Mrs. McDonnell guilty of several corruption-related charges. McDonnell, 792 F.3d at 486 n.1. Her appeal remains pending. McDonnell, 136 S. Ct. at 2367. He appealed on three grounds: that the court had erroneously instructed the jury on what could constitute an âofficial act,â that the honest services statute and Hobbs Act were unconstitutionally vague, and that the evidence was insufficient.31×31. McDonnell, 136 S. Ct. at 2367. This comment does not discuss elements of McDonnellâs appeal rejected by the Fourth Circuit and not taken up by the Supreme Court. The Fourth Circuit affirmed.32×32. McDonnell, 792 F.3d at 520. The panel rejected McDonnellâs central argument that the district courtâs definition of âofficial actâ was too broad, and held that the instruction properly limited the illegal acts to the statutory definition.33×33. Id. at 509.
The Supreme Court reversed. Writing for a unanimous Court, Chief Justice Roberts rejected the governmentâs contention that the definition of âofficial actâ within § 201(a)(3) included âany decision or action, on any question or matter, that may at any time be pending, or which may by law be brought before any public official, in such officialâs official capacity.â34×34. McDonnell, 136 S. Ct. at 2367 (quoting Brief for the United States at 20â21, McDonnell, 136 S. Ct. 2355 (No. 15-474)) (governmentâs emphasis). Instead, the Court read both âquestion or matterâ and âdecision or actionâ more narrowly.
The Chief Justice first examined the bribery statuteâs text. Employing the canon of construction noscitur a sociis â âa word is known by the company it keepsâ35×35. Id. at 2368 (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). The example given by the Court for the past use of this canon is widely reviled for its perversion of the statute. See, e.g., Stephen M. Bainbridge, Securities Act Section 12(2) After the Gustafson Debacle, 50 Bus. Law. 1231, 1231â32 (1995) (describing the decision as âthe most poorly-reasoned, blatantly results-driven securities opinion in recent memoryâ). â the Court found the otherwise broad terms question and matter to be constrained by the statutory phraseâs later reference to a âcause, suit, proceeding, or controversy.â36×36. McDonnell, 136 S. Ct. at 2368. These more specific words all connoted âa formal exercise of government power.â Id. Reading question and matter expansively would also have encompassed these terms, rendering the more specific words superfluous.37×37. Id. at 2369. The Chief Justiceâs interpretation, by contrast, excluded most of the meetings, calls, and events in which McDonnell had been involved.38×38. Id. The Court, however, affirmed the Fourth Circuitâs determination that initiating research studies, allocating grant money, and determining whether state health insurance would cover Anatabloc were questions or matters.39×39. Id. at 2369â70. These instances were sufficiently âfocused and concrete,â and âinvolve[d] a formal exercise of governmental power . . . similar in nature to a lawsuit, administrative determination, or hearing.â Id. at 2370.
The opinion next turned to § 201(a)(3)âs requirement of a decision or action. Chief Justice Roberts framed the inquiry as âwhether arranging a meeting, contacting another official, or hosting an eventâ â steps taken by McDonnell â âmay qualify as a âdecision or actionâ on a different question or matter.â40×40. Id. at 2369. Relying on United States v. Sun-Diamond Growers of California,41×41. 526 U.S. 398 (1999). Sun-Diamond addressed the related federal prohibition on gratuities. See id. at 400. the Court held that âsomething moreâ was required before an âevent, meeting, or speech . . . related to a pending question or matterâ became a decision or action.42×42. McDonnell, 136 S. Ct. at 2370. The Chief Justice allowed that the âsomething moreâ could be taking action or making a decision on âa qualifying stepâ toward an official act, âusing [an] official position to exert pressure on another official to perform an âofficial act,ââ or âprovid[ing] advice to another official, knowing or intending that such advice will form the basis for an âofficial actâ by another official.â43×43. Id. An official need not actually take the agreed-upon action. Id. at 2370â71. The Court thus drew a line between âexpressing supportâ and pressuring another official.44×44. Id. at 2371. The Court found its earlier decision in United States v. Birdsall, 233 U.S. 223 (1914), to comport with the present opinion because the officials there provided advice. McDonnell, 136 S. Ct. at 2371. When preceded by a quid and a pro, the former was politics, the latter a crime.
The Court buttressed this narrow definition of official act with the constitutional concerns raised by Governor McDonnell. Emphasizing the âpall of potential prosecution,â Chief Justice Roberts wrote that â[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.â45×45. McDonnell, 136 S. Ct. at 2372. That âthe union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a stormâ might feel prevented from making campaign contributions or taking an official âon their annual outing to the ballgameâ troubled the Court.46×46. Id. The governmentâs preferred definition of official act could lead to a regime in which âcitizens with legitimate concerns might shrink from participating in democratic discourse.â47×47. Id. A broader interpretation also raised the due process specter of inadequate notice to public officials and their constituents, and the Court found prosecutorial discretion an inadequate safeguard.48×48. Id. at 2372â73. Finally, federalism interests weighed against federal regulation of the conduct of state and local officials.49×49. Id. at 2373. Because the district courtâs jury instruction failed to narrow official act to the scope embraced by the Court,50×50. Id. at 2374. The instructions failed to make clear that, without more, a âtypical meeting, call, or eventâ could not be a question or matter under § 201(a)(3), nor could the Governorâs general agenda of economic development be a question or matter. Id. They also did not define decision or action to require intent to pressure or advise. Id. the Court vacated the convictions.51×51. Id. at 2375. In light of the narrowed definition of âofficial act,â the Court rejected McDonnellâs claim that the honest services statute and the Hobbs Act were unconstitutionally vague. Id. It also declined to address McDonnellâs argument that insufficient evidence existed to convict him, remanding the question. Id.
McDonnell represents the latest victory for the idea that â[t]he appearance of influence or access . . . will not cause the electorate to lose faith in our democracy.â52×52. Citizens United v. FEC, 558 U.S. 310, 360 (2010). The Court acknowledged that Governor McDonnellâs âtawdry tale[] of Ferraris, Rolexes, and ball gownsâ was âdistasteful,â or even âworse than that.â53×53. McDonnell, 136 S. Ct. at 2375. In spite of this criticism, the decision makes it easier for officeholders to spin their own stories of ill repute. The Court need not have reached this result. By focusing on what constitutes an official act in isolation rather than on the function of the anticorruption statutes more broadly, the Court ignored the limitations it had already placed on prosecutions of constituent service. Nevertheless, the Courtâs determination that preliminary steps, pressure, and advice could all constitute decisions or actions under § 201(a)(3) will reduce the practical impact of the case in future public-corruption prosecutions. More damaging will be the continued erosion of public confidence in elected officials and that lossâs effect on participation in the democratic process â the very value the Court sought to protect.
The Courtâs opinion evaluates the definition of âofficial actâ as though it were the sole limitation on the sweep of the anticorruption regime. Each of the three statutes the decision used in defining that regime, however, contains additional elements that further narrow its scope. First, within the anticorruption context, the Hobbs Act prohibits only âobtaining a âthing of value . . . knowing that the thing of value was given in return for official action.ââ54×54. Id. at 2365 (quoting United States v. McDonnell, 792 F.3d 478, 505 (4th Cir. 2015) (alteration in original)). This prohibition stems from the Courtâs interpretation of extortion carried out âunder color of official rightâ in 18 U.S.C. § 1951(b)(2). The statutes reviewed in this comment also prohibit other behavior, but the prosecution relied on only the provisions discussed here. Id. The person accepting that to which he is not entitled must know it was given in return for specific official acts,55×55. Evans v. United States, 504 U.S. 255, 268 (1992). though the explicitness of the quid pro quo depends on whether campaign contributions constitute the thing of value.56×56. See, e.g., United States v. Ganim, 510 F.3d 134, 143 (2d Cir. 2007) (Sotomayor, J.) (explaining that when the thing of value is not a campaign contribution, a quid pro quo is still required, but âthe agreement may be implied from the officialâs words and actionsâ); United States v. Giles, 246 F.3d 966, 972â73 (7th Cir. 2001) (requiring at least an implied quid pro quo); United States v. Collins, 78 F.3d 1021, 1035 (6th Cir. 1996) (holding a quid pro quo to be necessary even outside of campaign contribution cases). The sort of âgeneralized goodwillâ engendered by a lunch or normal political interaction not tied to an exchange does not rise to a violation.57×57. See Ganim, 510 F.3d at 149. In the labor union hypothetical posed by the Court,58×58. McDonnell, 136 S. Ct. at 2372 (mentioning a âunion [that] had given a campaign contribution in the pastâ). At oral argument, the Justices frequently conflated campaign contributions and other things of value. See, e.g., Transcript of Oral Argument at 30â31, McDonnell, 136 S. Ct. 2355 (No. 15-474), https://www.supremecourt.gov/oral_arguments/argument_transcripts/15-474_1bn2.pdf [https://perma.cc/EV4G-RMGL] (referring to âhigh-dollar donorsâ). the exacting standard for when a campaign contribution becomes a bribe would require âan explicit promise or undertaking by the officialâ whereby âthe official asserts that his official conduct will be controlled by the terms of the promise or undertaking.â59×59. McCormick v. United States, 500 U.S. 257, 273 (1991). Though Evans v. United States, 504 U.S. 255, is less clear about the required agreement, most courts of appeals have reconciled the cases by holding that McCormickâs demand of an explicit agreement applies only in the campaign contribution context. See, e.g., Ganim, 510 F.3d at 143. The precise form of the required agreement continues to produce variation among the lower courts, but all require an agreement in the campaign contribution context to be at least as clear as the quid pro quo necessary when dealing with other things of value. See, e.g., United States v. McGregor, 879 F. Supp. 2d 1308, 1314â19 (M.D. Ala. 2012) (collecting cases and observing that â[i]mprecise diction has caused considerable confusion over the scope of federal corruption laws as applied to campaign contributions,â id. at 1319). The terms of the quid pro quo in such a case must be âclear and unambiguous.â60×60. See United States v. Carpenter, 961 F.2d 824, 827 (9th Cir. 1992); see also Ganim, 510 F.3d at 142 (requiring an âexpress promiseâ); United States v. Tomblin, 46 F.3d 1369, 1381 (5th Cir. 1995) (quoting Carpenter, 961 F.2d at 827). But see United States v. Hairston, 46 F.3d 361, 365 (4th Cir. 1995) (describing the quid pro quo requirement as ânot onerousâ).
The honest services fraud statute contains similarly restrictive limitations after Skilling v. United States,61×61. 561 U.S. 358 (2010). which had already dramatically narrowed the scope of federal anticorruption law by interpreting the statute to prohibit only âfraudulent schemes to deprive another of honest services through bribes or kickbacks.â62×62. Id. at 404; cf. Andrew M. Stengel, Albanyâs Decade of Corruption: Public Integrity Enforcement After Skilling v. United States, New Yorkâs Dormant Honest Services Fraud Statute, and Remedial Criminal Law Reform, 76 Alb. L. Rev. 1357, 1358 (2013) (describing Skilling as âupending nearly twenty-five years of public corruption prosecutionsâ through its narrowing of honest services fraud). That case emphatically dismissed the constitutional concerns regarding fair notice and arbitrary prosecutions later presented in McDonnell, holding that the statute âdoes not present a problem on either score.â63×63. Skilling, 561 U.S. at 412. Compare id. at 412â13, with McDonnell, 136 S. Ct. at 2372. The statuteâs mens rea requirement precluded officeholders from somehow being duped into committing a crime, and the interlocking restrictions of the anticorruption statutes left âno significant riskâ of arbitrary prosecutions.64×64. Skilling, 561 U.S. at 412. McDonnellâs discussion of the potential breadth of the statutory regime never reckoned with Skillingâs resolution of these arguments.65×65. Id. Whether Skilling requires an explicit quid pro quo â which would only further restrict the statute â remains less clear. See, e.g., Brian H. Connor, Comment, The Quid Pro Quo Quark: Unstable Elementary Particle of Honest Services Fraud, 65 Cath. U. L. Rev. 335, 356â57 (2015) (comparing post-Skilling approaches to honest services fraud across circuits). At least the Second Circuit has held a quid pro quo to be âan essential elementâ of honest services fraud when prosecutors base the charge on bribery. United States v. Bruno, 661 F.3d 733, 743 (2d Cir. 2011) (citing Ganim, 510 F.3d at 148â49). In any event, the parties in McDonnell stipulated to the quid pro quo requirement. See United States v. McDonnell, 792 F.3d 478, 505 (4th Cir. 2015).
Finally, the federal bribery statute considered by the Court also criminalizes only a narrow swath of behavior. In relevant part, § 201 lays out the five parts of a bribe: (1) a public official (2) with corrupt intent (3) receives a benefit (4) given with the intent to influence (5) an official act.66×66. Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. Rev. 784, 795â96, 795 n.39 (1985). These elements distill the verbose statute. See 18 U.S.C. § 201(b)(2) (2012) (making it a crime to be a public official who âdirectly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value . . . in return for . . . being influenced in the performance of any official actâ). The Court explored the fifth element, but â just as with the honest services fraud statute â the two intent requirements further limit the law. Indeed, requiring âcorrupt intentâ prevents from becoming criminal the sort of innocuous exchanges repeatedly posited by the Court.67×67. See Brennan T. Hughes, The Crucial âCorrupt Intentâ Element in Federal Bribery Laws, 51 Cal. W. L. Rev. 25, 26 (2014). Prosecutors must demonstrate that an official âsaw a normative stop sign of some sort, whether social or legal, and chose to proceed on past it.â68×68. Samuel W. Buell, Culpability and Modern Crime, 103 Geo. L.J. 547, 568 (2015). Though the exact contours of the element remain disputed,69×69. Compare United States v. Jennings, 160 F.3d 1006, 1013 (4th Cir. 1998) (equating âcorrupt intentâ to a quid pro quo), with United States v. Strand, 574 F.2d 993, 996 (9th Cir. 1978) (âAn act is âcorruptlyâ done, if done voluntarily and intentionally, and with the bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means.â). it prevents the rightly responsive representative from wandering into receiving bribes.70×70. See Lowenstein, supra note 66, at 798â99. Constituents are similarly protected because the giver must also specifically intend to exchange benefits for acts.71×71. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404â05 (1999). The contention that without a narrow definition of official act prosecutors could bring charges when âhomeownersâ ask an âofficial to join them on their annual outing to the ballgameâ and are told âwhy it took five days to restore power . . . after a storm,â McDonnell, 136 S. Ct. at 2372, thus fails to reckon with this element. The Courtâs repeated citations to Sun-Diamond ignore this aspect of the statute, despite that decision having characterized it as a âdistinguishing featureâ of the lawâs reach.72×72. 526 U.S. at 404â05 (distinguishing bribes from illegal gratuities).
Given the robust protections the additional elements of these three statutes provide against vagueness, prosecutorial abuse, and the criminalization of routine constituent service, the Courtâs overarching focus on the quo â as if that element alone delineated politics from bribes â confounds.73×73. See Transcript of Oral Argument, supra note 58, at 30 (Chief Justice Roberts: âSo is your answer, yes, that thatâs a felony?â; Deputy Solicitor General Dreeben: âIf somebody pays me ââ; Chief Justice Roberts: âNo, no. Thatâs the quid â thatâs the quid side of it.â); see also McDonnell, 136 S. Ct. at 2370 (noting that the Court could âavoid the âabsurditiesâ of convicting individuals on corruption charges for engaging inâ constituent service âby adopting a more limited definition of âofficial actsââ) (quoting Sun-Diamond, 526 U.S. at 408). The Courtâs approach becomes even more puzzling in light of the policy and constitutional arguments supporting a broader definition of corruption. These justifications likely surpass the magnitude of the downsides envisioned by the Chief Justice. While McDonnell ultimately accepts that money should be able to buy access and influence, by most measures, citizens disagree. More than three-quarters of all Americans believe that the role of money in politics continues to grow.74×74. See Pew Research Ctr., Beyond Distrust: How Americans View Their Government 72 (2015), http://www.people-press.org/files/2015/11/11-23-2015-Governance-release.pdf [https://perma.cc/7GC6-X9SZ]. Less than a third believe that elected officials are honest.75×75. See id. at 75. It may well be that â[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.â76×76. McDonnell, 136 S. Ct. at 2372. But when it comes to the â[i]ngratiation and accessâ constitutionalized by the Roberts Court,77×77. Citizens United v. FEC, 558 U.S. 310, 360 (2010); see also Laurence H. Tribe, Dividing Citizens United: The Case v. the Controversy, 30 Const. Comment. 463, 463 (2015) (describing âa bizarrely cramped and naĂŻve vision of political corruption and improper influence in the electoral processâ as âcharacteristic of [the] Roberts Courtâ). âthe public reads the money as corruption.â78×78. Lawrence Lessig, Republic, Lost: How Money Corrupts Congress â And a Plan to Stop It 88 (2011). Having become pervasive,79×79. See Ronald Dworkin, The Curse of American Politics, N.Y. Rev. Books (Oct. 17, 1996), http://www.nybooks.com/articles/1996/10/17/the-curse-of-american-politics [https://perma.cc/3PRU-9Q57] (âThe power of money in our politics, long a scandal, has now become a disaster.â); see also Fred Wertheimer & Susan Weiss Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum. L. Rev. 1126, 1126 (1994) (describing âinfluence-seeking moneyâ as âa pervasive forceâ). this money threatens the representative compact.80×80. See Lessig, supra note 78, at 8â9; see also FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 507 (2007) (Souter, J., dissenting) (noting âpervasive public cynicismâ resulting from the increased role of money in politics). Individuals unable to give tens of thousands of dollars may feel voiceless, âlose confidence in the political system and become less willing to participate in the political process.â81×81. Stephen Breyer, Active Liberty 44â45 (2006). The perception that cash buys representation creates âa world where the vast majority of us disengageâ82×82. Lessig, supra note 78, at 169. Some contest this relationship between the perception of corruption and participation in the political process. See generally William J. Rinner, Note, Maximizing Participation Through Campaign Finance Regulation: A Cap and Trade Mechanism for Political Money, 119 Yale L.J. 1060, 1082â83 (2010) (reviewing literature disputing that the appearance of corruption reduces democratic engagement). Indeed, several 2016 presidential campaigns effectively mobilized voters with critiques of the role of money in politics. Engagement during presidential elections, though, may not reflect participation more broadly. Cf. Christopher S. Elmendorf & David Schleicher, Informing Consent: Voter Ignorance, Political Parties, and Election Law, 2013 U. Ill. L. Rev. 363, 384 (critiquing broad conclusions about voter behavior drawn from studies of national politics). â precisely the problem the Chief Justice concluded a broad definition of official act would engender.83×83. McDonnell, 136 S. Ct. at 2372.
Still, the Courtâs qualification of what constitutes a decision or action on an official act under the control of another government official will likely mitigate the effect of a narrower definition of âofficial act.â Chief Justice Roberts described three situations in which a jury might yet find criminal activity: (1) the taking of âa decision or action on a qualifying stepâ toward an official action; (2) the using of an âofficial position to exert pressure on another official to perform an âofficial act,ââ; and (3) the giving of âadvice to another official, knowing or intending that such advice will form the basis for an âofficial actâ by another official.â84×84. Id. at 2370. That Governor McDonnellâs behavior likely fell into all three categories demonstrates their pliability. By choosing which company representatives to invite to meetings in which grant proposals were discussed, he may have been ânarrowing down the list of potential research topics.â85×85. Id. Though the decision often discusses actually taking actions, id., the statutes require only an agreement to perform them, see, e.g., Evans v. United States, 504 U.S. 255, 268 (1992) (holding that âfulfillment of the quid pro quo is not an elementâ of a Hobbs Act violation). Prosecutors might also reframe meetings, calls, and events as circumstantial evidence of an agreement regarding other official acts. His subordinates at the state universities seem to have âperceived that he was trying to influence them.â86×86. Transcript of Oral Argument, supra note 58, at 8; accord McDonnell, 136 S. Ct. at 2366 (noting a subordinateâs perception of pressure). He arguably gave advice to state officials when he suggested that Anatabloc âwould be good for . . . state employees.â87×87. United States v. McDonnell, 792 F.3d 478, 517 (4th Cir. 2015). Furthermore, throughout every interaction, his position as âChief Executive of the Commonwealthâ gave his assertions additional âcredibilityâ and force,88×88. Id. at 516. offering a jury ample grounds to infer pressure.89×89. Simply put, subordinates are heavily influenced by the preferences of their superiors. Known as âobedience pressures,â the impact on subordinatesâ decisionmaking within a hierarchical system â like government â can be significant. See Sung Hui Kim, The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper, 74 Fordham L. Rev. 983, 1004 (2005); Lee Ross & Donna Shestowsky, Contemporary Psychologyâs Challenges to Legal Theory and Practice, 97 Nw. U. L. Rev. 1081, 1096â97 (2003).
After McDonnell, lower courts and the Department of Justice retain the power to reframe prosecutions based on theories of access and influence â like Governor McDonnellâs â as cases in which officials used their offices to pressure subordinates, offer advice, or take initial steps somewhat attenuated from the ultimate official action.90×90. That prosecutors can reframe cases in this way does not mean that they will. Compare Matt Zapotosky, U.S. Attorneyâs Office Recommends Putting Robert McDonnell on Trial Again, Wash. Post (Sept. 2, 2016), https://www.washingtonpost.com/world/national-security/us-attorneys-office-recommends-putting-robert-mcdonnell-on-trial-again/2016/09/02/3ea3eff0-6fb8-11e6-8533-6b0b0ded0253_story.html [https://perma.cc/CH98-GMHG], with Alan Blinder, U.S. Ends Corruption Case Against Former Virginia Governor, N.Y. Times (Sept. 8, 2016), http://www.nytimes.com/2016/09/09/us/us-ends-corruption-case-against-former-virginia-governor.html [https://perma.cc/RR2D-Y3NR]. Given these qualifications, McDonnell may best be understood as revising jury instructions rather than rewriting what constitutes corruption itself. Regardless of how prosecutors and judges eventually respond, citizens already perceive the pay-to-play rhetoric of the Court as reason enough to âshrink from participating in democratic discourse.â91×91. McDonnell, 136 S. Ct. at 2372. Reversing that trend will require more than creative prosecutions.
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