The United States Supreme famously said (this is from the Citizens United decision announced in January of 2010).

… independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy.

I disagree with the court.

I believe that the electorate has clearly lost a great deal of faith because of the appearance of influence or access by those with money.

Robert McDonnell, the former governor of Virginia, had been recently convicted in federal court of charges arising from him taking hundreds of thousands of dollars in as gifts from a businessman, and then helping that businessman get assistance from the state government to promote his business.

The other day, the Supreme Court decided unanimously in favor of McDonnell. I excerpt a few lines from the opinion of Chief Justice John Roberts.

The theory underlying both the honest services fraud and Hobbs Act extortion charges was that Governor McDonnell had accepted bribes from Williams.

the federal bribery statute … makes it a crime for a public official or person selected to be a public official, directly or indirectly, corruptly to demand, seek, receive, accept, or agree to receive or accept anything of value in return for being influenced in the performance of any official act….

An “official act” is defined 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.

… the Government was required to prove that Governor McDonnell committed or agreed to commit an “official act” in exchange for the loans and gifts from Williams …

The Government alleged that Governor McDonnell had committed at least five “official acts”:

1. arranging meetings for [Williams] with Virginia government officials, who were subordinates of the Governor, to discuss and promote Anatabloc

2. hosting, and . . . attending, events at the Governor’s Mansion designed to encourage Virginia university researchers to initiate studies of anatabine and to promote Star Scientific’s products to doctors for referral to their patients

3. contacting other government officials in the [Governor’s Office] as part of an effort to encourage Virginia state research universities to initiate studies of anatabine

4. promoting Star Scientific’s products and facilitating its relationships with Virginia government officials by allowing [Williams] to invite individuals important to Star Scientific’s business to exclusive events at the Governor’s Mansion”

5. recommending that senior government officials in the [Governor’s Office] meet with Star Scientific executives to discuss ways that the company’s products could lower healthcare costs.

Where do we draw the line? Let’s take a look at a few different situations.

Situation A:

Let’s say you gave to your favorite presidential candidate, and your person won. Would it be a crime if you requested, and received a ticket to stand on the East lawn of the Capitol Building for the inaugural address?

Situation B:

In a similar scenario, let’s say you gave to a presidential candidate who later wins. Now say you are trying to impress a prospective significant other, and you know you were given two tickets to the inaugural address. What if you successfully impress the potential partner because the president shakes hand with your prospective significant other and shares a laugh during a special reception after?

What if you asked for the extra ticket for a business partner, not a personal partner, and you really wanted to try to impress the business partner by inviting him or her to an event in the White House?

Situation C:

Again, you have given to a candidate who is now president. Let’s say that during an event you pull the President aside and express concern for Syrians drowning in the Aegean Sea. You ask the president about the persecution of Syrian Christian clerics, and specifically your brother-in-law who you know your significant other wants to come to America; and what if the President then told an aide to take you aside and get the brother’s name and wherabouts in Syria?

What if congress had just passed a bill banning all Syrian refugees and the President was trying to decide whether or not to sign the bill?  Has the president violated the law by accepting your donation, and then discussing with you whether or not to sign the bill?

There are lots of possible variations: the US Attorney in Virginia arguably think that every one of these things is illegal. The Supreme Court spent a lot of time parsing what they mean by “official” act, and whether doing things like inviting people to receptions or introducing people to other people constitute “official acts.” (vetoing a bill is pretty surely an “official act”).   Are those things part of the political leaders job?  The defense argued that meeting with constituents and trying to address the constituents’ issues are exactly what the politicians job is, and if that is the case, then the prosecutors are really saying that being a politician is illegal.

Maybe each of the above situations is a violation of the Hobbs Act. Maybe none of them are. The difficult thing is that we don’t really have a law against political corruption. Political corruption is prosecuted as traditional crimes (robbery, extortion) and the federal prosecutors have to explain how the corrupt politician extorted money from the constituent, or some such.

Congress should pass a new simple law that elected official are not allowed to accept gifts of more than nominal value (with some appropriate exceptions for their immediate family, winning the Nobel Prize, etc.).

And for the sake of moving forward, Congress needs to do this as soon as possible.