Most people would assume that giving $175,000 in loans, gifts, and other benefits to a sitting governor while trying to secure his state’s 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 Last Term, in McDonnell v. United States,2 the Supreme Court held that the federal bribery statute’s definition of “official act” does not include “arranging a meeting, contacting another public official, or hosting an event” without the presence of something “more.”3 The Court emphasized the consequences of a broader interpretation, but failed to consider existing limitations on federal anticorruption laws and the decision’s 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 McDonnell’s campaign for Virginia Governor focused on job growth, and Jonnie Williams thought he could advance that agenda.4 Williams headed Star Scientific, a Virginia company developing a nutritional supplement called Anatabloc.5 Star needed research showing the drug’s health benefits, which Virginia’s public universities could perform if they received state grants.6 The two men were introduced during McDonnell’s 2009 campaign, and shortly thereafter the businessman asked McDonnell for help.7 McDonnell agreed to introduce Williams to Virginia’s Secretary of Health and Human Resources.8 A few months later, McDonnell’s 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 Over dinner at the governor’s mansion, the three then discussed the proposed studies.10
At the same time, the McDonnells’ longtime money problems became acute.11 Mrs. McDonnell told Williams that her husband said, “it’s okay for me to help you . . . but I need you to help me.”12 Williams consequently gave the McDonnells $65,000.13 The Governor began to set up more meetings for Williams with state agencies, and Williams lent the McDonnells his vacation home and Ferrari.14 At Mrs. McDonnell’s suggestion, he also purchased the Governor a Rolex.15
In August 2011, Governor McDonnell held a lunch with university researchers to launch Anatabloc.16 Afterward, the McDonnells asked for a $50,000 loan, but Williams complained about the lack of progress.17 Mrs. McDonnell emailed the Governor’s counsel to express the Governor’s desire “to get this going,” and Governor McDonnell held another reception for researchers.18 The money arrived “shortly thereafter,” and the Governor then suggested the inclusion of Anatabloc in the state’s employee healthcare plan to a cabinet secretary and agency head.19 Over the next few months, Williams provided McDonnell with a third loan, golf outings, and a vacation.20
In January 2014, federal prosecutors indicted the by-then-former Governor.21 The primary charges of honest services fraud and Hobbs Act extortion reflected the government’s belief that Williams bribed McDonnell.22 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 Most relevant to his ultimate appeal was whether Governor McDonnell had “‘receive[d] or accept[ed] anything of value’ in return for being ‘influenced in the performance of any official act.’”24 The bribery statute defines an “official act” as “any 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 official’s official capacity, or in such official’s place of trust or profit.”25 Prosecutors alleged at least five such acts centered on the meetings and events McDonnell set up for Williams.26
After trial, the district court gave the government’s proposed jury instruction, which added to the statutory definition the admonition that “official act” included “‘acts that a public official customarily performs,’ including acts ‘in furtherance of longer-term goals’ or ‘in a series of steps to exercise influence or achieve an end.’”27 The court rejected Governor McDonnell’s suggested qualifications, including that customary duties, “arranging a meeting,” or “hosting a reception” could not — on their own — be official acts.28 The court also declined to require that the officeholder intend to “influence a specific official decision the government actually makes.”29
The jury convicted McDonnell on all counts except the false statement charge.30 He appealed on three grounds: that the court had erroneously instructed the jury on what could constitute an “official act,” that the honest services statute and Hobbs Act were unconstitutionally vague, and that the evidence was insufficient.31 The Fourth Circuit affirmed.32 The panel rejected McDonnell’s central argument that the district court’s definition of “official act” was too broad, and held that the instruction properly limited the illegal acts to the statutory definition.33
The Supreme Court reversed. Writing for a unanimous Court, Chief Justice Roberts rejected the government’s contention that the definition of “official act” within § 201(a)(3) included “any 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 official’s official capacity.”34 Instead, the Court read both “question or matter” and “decision or action” more narrowly.
The Chief Justice first examined the bribery statute’s text. Employing the canon of construction noscitur a sociis — “a word is known by the company it keeps”35 — the Court found the otherwise broad terms question and matter to be constrained by the statutory phrase’s later reference to a “cause, suit, proceeding, or controversy.”36 Reading question and matter expansively would also have encompassed these terms, rendering the more specific words superfluous.37 The Chief Justice’s interpretation, by contrast, excluded most of the meetings, calls, and events in which McDonnell had been involved.38 The Court, however, affirmed the Fourth Circuit’s determination that initiating research studies, allocating grant money, and determining whether state health insurance would cover Anatabloc were questions or matters.39
The opinion next turned to § 201(a)(3)’s requirement of a decision or action. Chief Justice Roberts framed the inquiry as “whether arranging a meeting, contacting another official, or hosting an event” — steps taken by McDonnell — “may qualify as a ‘decision or action’ on a different question or matter.”40 Relying on United States v. Sun-Diamond Growers of California,41 the Court held that “something more” was required before an “event, meeting, or speech . . . related to a pending question or matter” became a decision or action.42 The Chief Justice allowed that the “something more” could be taking action or making a decision on “a qualifying step” toward an official act, “using [an] official position to exert pressure on another official to perform an ‘official act,’” or “provid[ing] advice to another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.”43 The Court thus drew a line between “expressing support” and pressuring another official.44 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 “pall of potential prosecution,” Chief Justice Roberts wrote that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”45 That “the 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 storm” might feel prevented from making campaign contributions or taking an official “on their annual outing to the ballgame” troubled the Court.46 The government’s preferred definition of official act could lead to a regime in which “citizens with legitimate concerns might shrink from participating in democratic discourse.”47 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 Finally, federalism interests weighed against federal regulation of the conduct of state and local officials.49 Because the district court’s jury instruction failed to narrow official act to the scope embraced by the Court,50 the Court vacated the convictions.51
McDonnell represents the latest victory for the idea that “[t]he appearance of influence or access . . . will not cause the electorate to lose faith in our democracy.”52 The Court acknowledged that Governor McDonnell’s “tawdry tale[] of Ferraris, Rolexes, and ball gowns” was “distasteful,” or even “worse than that.”53 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 Court’s 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 loss’s effect on participation in the democratic process — the very value the Court sought to protect.
The Court’s opinion evaluates the definition of “official act” 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 “obtaining a ‘thing of value . . . knowing that the thing of value was given in return for official action.’”54 The person accepting that to which he is not entitled must know it was given in return for specific official acts,55 though the explicitness of the quid pro quo depends on whether campaign contributions constitute the thing of value.56 The sort of “generalized goodwill” engendered by a lunch or normal political interaction not tied to an exchange does not rise to a violation.57 In the labor union hypothetical posed by the Court,58 the exacting standard for when a campaign contribution becomes a bribe would require “an explicit promise or undertaking by the official” whereby “the official asserts that his official conduct will be controlled by the terms of the promise or undertaking.”59 The terms of the quid pro quo in such a case must be “clear and unambiguous.”60
The honest services fraud statute contains similarly restrictive limitations after Skilling v. United States,61 which had already dramatically narrowed the scope of federal anticorruption law by interpreting the statute to prohibit only “fraudulent schemes to deprive another of honest services through bribes or kickbacks.”62 That case emphatically dismissed the constitutional concerns regarding fair notice and arbitrary prosecutions later presented in McDonnell, holding that the statute “does not present a problem on either score.”63 The statute’s mens rea requirement precluded officeholders from somehow being duped into committing a crime, and the interlocking restrictions of the anticorruption statutes left “no significant risk” of arbitrary prosecutions.64 McDonnell’s discussion of the potential breadth of the statutory regime never reckoned with Skilling’s resolution of these arguments.65
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 The Court explored the fifth element, but — just as with the honest services fraud statute — the two intent requirements further limit the law. Indeed, requiring “corrupt intent” prevents from becoming criminal the sort of innocuous exchanges repeatedly posited by the Court.67 Prosecutors must demonstrate that an official “saw a normative stop sign of some sort, whether social or legal, and chose to proceed on past it.”68 Though the exact contours of the element remain disputed,69 it prevents the rightly responsive representative from wandering into receiving bribes.70 Constituents are similarly protected because the giver must also specifically intend to exchange benefits for acts.71 The Court’s repeated citations to Sun-Diamond ignore this aspect of the statute, despite that decision having characterized it as a “distinguishing feature” of the law’s reach.72
Given the robust protections the additional elements of these three statutes provide against vagueness, prosecutorial abuse, and the criminalization of routine constituent service, the Court’s overarching focus on the quo — as if that element alone delineated politics from bribes — confounds.73 The Court’s 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 Less than a third believe that elected officials are honest.75 It may well be that “[t]he basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns.”76 But when it comes to the “[i]ngratiation and access” constitutionalized by the Roberts Court,77 “the public reads the money as corruption.”78 Having become pervasive,79 this money threatens the representative compact.80 Individuals unable to give tens of thousands of dollars may feel voiceless, “lose confidence in the political system and become less willing to participate in the political process.”81 The perception that cash buys representation creates “a world where the vast majority of us disengage”82 — precisely the problem the Chief Justice concluded a broad definition of official act would engender.83
Still, the Court’s 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 “official act.” Chief Justice Roberts described three situations in which a jury might yet find criminal activity: (1) the taking of “a decision or action on a qualifying step” toward an official action; (2) the using of an “official position to exert pressure on another official to perform an ‘official act,’”; and (3) the giving of “advice to another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official.”84 That Governor McDonnell’s 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 “narrowing down the list of potential research topics.”85 His subordinates at the state universities seem to have “perceived that he was trying to influence them.”86 He arguably gave advice to state officials when he suggested that Anatabloc “would be good for . . . state employees.”87 Furthermore, throughout every interaction, his position as “Chief Executive of the Commonwealth” gave his assertions additional “credibility” and force,88 offering a jury ample grounds to infer pressure.89
After McDonnell, lower courts and the Department of Justice retain the power to reframe prosecutions based on theories of access and influence — like Governor McDonnell’s — 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 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 “shrink from participating in democratic discourse.”91 Reversing that trend will require more than creative prosecutions.