The Supreme Court has narrowed the public corruption cases subject to prosecution by failing to consider the appearance of corruption rationale. Quintessential corruption evokes a politician trading his vote for a briefcase stuffed with cash. Corruption? Absolutely. But what about the politician that hosts a dinner at the Governor’s mansion and sets up meetings with his staff, which helps out a wealthy constituent; a wealthy constituent who just happened to gift the politician a Rolex and lavish outings? Appearances suggest corruption even if no final legislative or administrative action can be identified.
Plato advocated a strict no gifts rule for public officials. This was the safest approach given the difficulty of segregating rewards for good versus evil deeds. Although Plato’s rule has not been adopted, the reasons underlying it have appeared in campaign finance cases. In Buckley v. Valeo, the Court found any effect on First Amendment rights due to individual contribution limits was justified by the government’s interest in preventing actual corruption and the appearance of corruption. In doing so, the Court noted both that the scope of actual corruption (i.e., quid pro quo for a larg campaign contribution) could never be readily ascertained and of almost equal importance to battling actual corruption was avoiding the appearance of improper influence to safeguard the public’s confidence in our governing system. The Court had previously addressed the appearance of corruption in a case involving a conflict of interest in a federal contract, observing that when politicians “engage in activities which arouse suspicions of malfeasance and corruption” it threatens to shatter faith in those who govern, thereby “endanger[ing] the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern.” United States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961).
Despite the appearance of corruption in campaign finance cases, it has been absent in criminal corruption cases. An absence that has led to an unjustifiably narrow statutory interpretation of criminal public corruption laws. First, in United States v. Sun-Diamond Growers of Cali. the Court invalidated a conviction for the Secretary of Agriculture accepting illegal gratuities. The Secretary had accepted over $5,000 worth of gifts from an agricultural interest group, including, among other things, tickets to the U.S. Open Tennis Tournament, luggage, and a crystal bowl. The Court concluded that simply showing the gratuity was given due to the recipient’s official position was insufficient, there must be a link between the thing of value and a specific official act. The Court’s rationale included two problematic pronouncements. First, the Court acknowledged it was “linguistically possible” for the text (“for or because of any official act performed or to be performed”) to mean official acts in general without specifying a particular one, but found the more natural meaning was for or because of some specific official act. Second, the Court approved of some gifts to public officials, noting it would be “peculiar” to criminalize “token gifts” such as a champion sports team giving a replica jersey to the President on a White House visit.
The problem with these pronouncements is that if the appearance of corruption was considered then the opposite conclusion should be reached on both points. Actual corruption requires a particular act be specified, but such a requirement largely excludes the appearance of corruption. Appearance of corruption often resides in generalities. When it comes to appearances the sum is often greater than the parts. We don’t think much of a politician that receives a baseball cap from a high school, but suspicions are aroused by a politician who accepts World Series tickets, a new watch, and trips from an interested party. Maybe no single gift to the politician was eyebrow raising in and of itself, but the accumulation of these gifts is suspicious.
The Court further narrowed conduct eligible for public corruption charges in McDonnell v. United States. McDonnell, Virginia’s governor, received a Rolex, a $10,000 gown for his wife, cash, and loans from the wealthy CEO of a Virginia nutritional supplement company. Governor McDonnell set up meetings for the wealthy CEO with various public servants/offices who were in a position to help the CEO’s business. To hold McDonnell criminally responsible there needed to be proof he committed (or agreed to commit) an official act in exchange for these gifts. Official act was defined in the statue 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 capacity, or in such official’s place of trust or profit.” The dispute centered on the bolded phrases. The Court acknowledged both “any decision or action” and “any question [or] matter” could be interpreted broadly. Any question or matter could conceivably encompass any relevant issue. Likewise, any decision or action could cover a great deal of conduct, including setting up a meeting. Both interpretations, however, were rejected. Any decision or action could not be so broad as to include hosting an event or speaking with interested parties, because in Sun-Diamond the President could host an event for a sports team and the Secretary of Agriculture could give a speech at an interest group’s event. Neither could any question or matter be read broadly given the list’s inclusion of cause, suit, proceeding or controversy. The latter terms include a more formal exercise of power. The Court settled on a definition that eliminated the breadth of the generic terms (question and matter) to conclude an official act requires “a formal exercise of governmental power similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.”
There are two problems with McDonnell. First, the Court made the mistake of applying Sun-Diamond‘s dicta approving of “token gifts” for certain governmental acts to approving of gifts for certain governmental acts. Second, the Court mandated that the politician’s act or decision involve a formal exercise of governmental power. Both propositions erode the ability to address the appearance of corruption. The Court’s requirements largely exclude the exchange of gifts between politicians and parties seeking benefits for informal governmental functions. In addition, the Court’s specificity requirements have made it difficult to prosecute all but the most blatant corruption. If ever there was an instance where a public official was engaged in conduct that gave the appearance of corruption it was McDonell, but the Court’s approach made it less likely such conduct could be punishable.
The refusal to consider the appearance of corruption as a principle underlying anti-corruption laws represents a disconnect in corruption jurisprudence and has led the Court astray on criminal public corruption. The Court is cognizant of and sensitive to the appearance of corruption in campaign finance, but pays no heed to this type of corruption in criminal cases. In a time when the American public’s confidence in our government is at historic lows, the Court has laid down standards that make it easier for public officials to abuse their position of trust. The exchange of valuable gifts between politicians and interest groups is low risk. So long as the gifts cannot be linked to a particular formal exercise of power the chances of criminal liability are slim.
The Court’s calculus assigns weight to the wrong considerations. Worries about whether the President can accept a Super Bowl jersey during a ceremonial visit or a constituent’s apple pie at a town hall are misplaced. The public does not derive a benefit from these gifts, but the public suffers the harm from legitimizing gift giving to public officials. At what point does a gift cross from token to corrupting? Is it the apple pie at a town hall, the free lunch at a conference, the extra seat at a baseball game, the golf retreat, or the loan. The impossibility of disentangling innocuous gifts from corrupting gifts should make accepting gifts a worrisome proposition.
Less formal exercises of governmental power should not be dismissed in public corruption cases. In Citizens United, Justice Stevens noted that the difference between selling votes versus selling access is a matter of degree, not kind. The public loses when it’s officials prioritize or attend to issues important to those who give gifts, because public officials have a finite amount of time, energy, and resources. Governor McDonnell used his time, office, and subordinates to help out the CEO who gave him $175,000 in gifts. What queries or issues went unanswered or unattended to accommodate the CEO’s agenda? A public servant’s duties encompass more than just votes, their culpability for self-enrichment should encompass more than just votes too.
Corruption encompasses more than the most blatant bribes, yet the Supreme Court has limited the criminal corruption statute to those egregious cases. This result can, and should, be avoided by including the appearance of corruption as a variable in its statutory interpretation.