As the governor of Virginia, Bob McDonnell solicited a fifty-thousand-dollar “loan” from a nutraceutical entrepreneur named Jonnie R. Williams, Sr., and, minutes later, he texted an aide about making sure that Williams got meetings he wanted with Virginia state officials. McDonnell also accepted a Rolex watch and a twenty-thousand-dollar “loan,” plus the payment of the catering bill for his daughter’s wedding, all the while making calls and arranging meetings on Williams’s behalf. McDonnell’s wife, who had suggested to Williams that her husband could use a Rolex, also let the businessman pay for about twenty thousand dollars’ worth of clothing for her, including designer dresses and a full-length white leather coat. The gifts and loans added up to a hundred and seventy-five thousand dollars.
The Supreme Court ruled, unanimously, that a Virginia jury was wrong to think that McDonnell’s actions obviously counted as official corruption. What’s more, in vacating his conviction, the Court set a new standard for official-bribery cases that is so absurdly narrow that it will likely be almost impossible to convict any but the most bumbling politicians of the crime. As Jeffrey Toobin predicted a few weeks ago, “Citizens United let rich people buy candidates; now they may be able to purchase office-holders, too.”
Technically, the Court held that selling an “official act” can be still illegal. But it also held that the McDonnell jury heard a definition of that term that was too broad. Something as subtle—or unsubtle—as an executive calling up an aide and telling her to listen to his very good friend, or taking a check and then having a quiet word with regulators, or even a directive that an influence-buyer should be helped in every way does not constitute an official act, at least not on its own, the Court found. Instead, according to the opinion written by Chief Justice John Roberts, an official act “must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.” In other words, if no gavel is involved, it will probably be hard to prove bribery, after this ruling. Indeed, the few politicians whom prosecutors may be able to convict are those who are careless enough to put together corruption to-do lists, since, according Roberts, a test of whether something is a bribable official act is whether it is “the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete.”
And yet those are hardly the only scenarios in which political power can be exercised, or sold. This raises the question of what the Justices could possibly have been thinking. One fear they had, apparently, was that, if McDonnell’s conviction stood, politicians across the country would live in a state of fear, sure that anyone could go to prison. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time,” Roberts wrote. If McDonnell’s conviction stood, it would “cast a pall of potential prosecution over these relationships.” This point came up during the oral arguments, when Justices across the Court’s ideological spectrum came up with scenarios out of idyllic mid-century county seats that could be construed as corrupt, such as going to baseball games or barbecues. As SCOTUSblog noted, Roberts had worried about the governor who discusses a possible plant opening during an afternoon of trout fishing with a C.E.O. (McDonnell, at times, skipped the discussion part, playing several rounds of golf with his sons and going on a country-club pro-store shopping spree that Williams paid for without even being present.)
It is tempting to think that the Justices are awfully naïve about politics, which often takes place in the space between agenda items, but perhaps they’re just contentedly cynical, at peace with the idea that this is how politics works. The decision in the McDonnell case may be an acknowledgement that if trading cash, favors, or expensive experiences for recognized crony status is a crime, then a lot of people are guilty. Roberts, in his decision, mentioned an amicus brief filed by a number of former White House counsels, who suggested that the business of politics as we know it would be impeded if the McDonnell decision were upheld. If a standard is too hazy, prosecutions can be politicized. That is always a concern. But there is a lot of room between impossibly vague and where the Court landed. And would challenging a culture of normalized influence-peddling really be such a bad thing? Making the law even laxer does not seem like the most effective way to push politicians to be better. The Court, in Citizens United and now in McDonnell, has looked upon the worst, most endemically corrupt aspects of American politics and enshrined them.
Roberts tends to be acutely concerned about the good motives of people in power being impugned—this was the case, for example, in his questions and his decisions in the big voting-rights and marriage-equality cases. In the McDonnell decision, he wrote that “officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.” “Participating in democratic discourse” seems, in this context, to have something to do with golf and Rolex watches, in the same way that, in Citizens United, multimillion-dollar super pac donations had everything to do with free speech. Roberts does concede that McDonnell’s behavior was not attractive. Yet, he found, “our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns” but, rather, with “boundless” definitions of public-corruption laws. If you wear a black robe, you can, perhaps, consider a white leather coat tacky—just don’t call it bribery.