After the unfortunate passing of Justice Antonin Scalia on February 13, the U.S. Supreme Court is left with eight justices who sometimes split along generalized “liberal” and “conservative” lines. In the campaign finance area, this is a fair characterization. McCutcheon v. Federal Election Commission (“FEC”) (2014), Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011) and Citizens United v. FEC (2010)—among the most recent of the Court’s campaign finance decisions—were each decided 5-4 with Justice Scalia joining Chief Justice Roberts and Justices Kennedy, Alito and Thomas in the majority. Each decision held that the First Amendment overruled or curtailed the laws challenged in each case. With leadership in the United States Senate presently resisting confirmation hearings for whomever President Obama may appoint to replace Justice Scalia (with which I’m sympathetic), campaign finance cases may end in 4-4 splits, unable to achieve a majority ruling. This would allow rulings at federal courts of appeal to stand, even if they are contrary to previous rulings. One pending case at the Court, McDonnell v. United States, is not specifically a campaign finance case but may have serious implications on the use of criminal law in campaign finance. 

The McDonnell case suffers from a combination of bad facts and bad law. Bob McDonnell, as governor of Virginia, accepted lavish gifts from Jonnie Williams, head of a quasi-pharmaceutical (or “nutraceutical”) company. The gifts included a Rolex watch, access to a Ferrari, a clam bake, and rounds of golf. (The story is detailed on pages 5 to 21 of the opinion of the Fourth Circuit Court of Appeals upholding McDonnell’s convictions.) Williams sought to have pharmaceutical testing of his company’s new drug conducted by Medical College of Virginia and the University of Virginia School of Medicine. McDonnell made efforts to promote this idea to various members of his cabinet as well as representatives of both medical schools. For this, McDonnell was convicted of numerous public corruption charges, including honest services wire fraud.

The question on appeal is whether anything Gov. McDonnell did in return for the gifts constitutes an “official act” for purposes of public corruption or bribery (which is required to support wire fraud charges) and, if so, whether the definition is constitutional. One might, on the basis of the facts, say “of course!” Indeed, it is bewildering to think Jonnie Williams could keep giving gifts to McDonnell over the course of several years if he was not promised something official. But this is a shot from the hip. Even the most damning actions the Fourth Circuit discusses in its ruling detail Governor McDonnell basically serving as an undisclosed lobbyist for Williams. He spoke highly of the product, frequently recommended it for a study, but did not order anyone (it’s not even clear he could order anyone) to take action. Allowing convictions on this basis could have serious effects on basic politicking which, hyperbole notwithstanding, is not a verb synonymous with corruption. The First Amendment does not protect bribery, but it protects from definitions of bribery that threaten legitimate political engagement—even shady arrangements that include dinners, parties and access for favored people.

McDonnell’s prosecutors made a good deal of the gifts in question, but at the time Virginia law allowed significant leeway for officials to accept gifts, even undisclosed ones from “personal friends.” (Some of these laws were amended last year by the Commonwealth’s legislature.) This adds to the problem by placing an investigatory burden on officeholders: where a state declines to cap or adequately police gifts, but expects to maintain bribery enforcement, the system becomes precariously arbitrary and political. That is, one can legally accept gifts, but then the government is empowered to investigate and prosecute cases, letting judge or jury decide whether the legal gifts were, in fact, illegal bribes. It is far better policy, and without constitutional problems, to place strict caps and disclosure requirements on any gifts received as a public official. Bribery can still be charged in tandem with breaking gift restrictions if the official promises to take or actually takes a well-defined official action in exchange for said gift. 

The principle behind keeping “official acts” narrowly defined goes far beyond McDonnell and its facts. One case, Cary v. Texas, which we’ve opined on as friend-of-the-court, offers an easier conundrum: can Texas prosecutors call illegal campaign contributions “bribes to run for office” or “bribes to continue running for office”? One hopes not, especially when Texas law defines both campaign contribution caps and penalties for breaking the law—making them charges and punishments people could reasonably expect for taking such action. The Cary case was heard by the Texas Court of Criminal Appeals in early November, and awaits ruling. Given that appellate courts in Texas have sat on cases for nearly a year between arguments and decision, it is possible the court is waiting for guidance in the McDonnell case. But with Scalia’s absence, it is uncertain whether there will be any guidance at all in the near future.

The desire to police “corruption” on a know-it-when-you-see-it basis blinds far too many prosecutors and campaign finance commissions. Objective laws protect free speech and political engagement, but also allow for shady dealing—even corruption. This is what reformers frequently call “loopholes.” But prosecutions like McDonnell and Cary are attempts to create loopholes through constitutional protections. These cases certainly feature corruption, but it is the kind that, when exposed, must be checked by the electorate, not prosecutors, judges and juries.