The following article from Barons explains our system with the supreme court's ruling last week. This was not covered in the media.
Editorial Commentary
U.S. Supreme Court Protects Politicians
The court says that it worries more about overzealous prosecutors than about targeting corrupt officials.
Considering that they are all political appointees, the eight justices of the U.S. Supreme Court don’t seem to understand an important thing about American politics: It’s never what you know; it’s always who you know and what they can do for you. The other possibility is worse—that they understand all too well.
The court, so often divided on partisan lines, was unanimous in a decision that there’s nothing intrinsically wrong with officials accepting gifts from people looking for favors, unless the favor is a specific and formal governmental act.
According to Chief Justice John Roberts, “Setting up a meeting, talking to another official, or organizing an event does not, standing alone, qualify as an ‘official act,’ ” and the other seven justices signed on to that opinion.
They overturned the extortion conviction of former Virginia Gov. Bob McDonnell, a Republican who left office in 2014. During his term, he and his wife received $177,000 worth of gifts, including a Rolex watch and partial payment for their daughter’s wedding reception, from a Richmond businessman who was trying to promote a dietary supplement. The governor arranged meetings with state officials and state university researchers and touted the product to them. He also allowed the businessman to use the governor’s mansion for a promotional lunch.
Roberts was impressed enough to call McDonnell's behavior tawdry and distasteful, but he provided a legalistic excuse: “Because a typical meeting, call, or event is not of the same stripe as a lawsuit before a court, a determination before an agency, or a hearing before a committee, it does not count as a ‘question’ or ‘matter’ ” under federal law.
The businessman, Jonnie Williams, who testified under a grant of immunity from prosecution, made it clear that he knew he was trying to buy official acts. The jury decided that he had succeeded, but the Supreme Court held that he failed.
Damaging Precedent
The McDonnell decision is encouraging other public officials, past, present, and future. Prominent among them is former New York State Assembly Speaker Sheldon Silver, who is appealing his conviction for taking huge sums to do a variety of favors. Silver’s lawyers said the decision “makes clear that the federal government has gone too far in prosecuting state officials for conduct that is part of the everyday functioning of those in elective office.”
The public should hear them loud and clear, though not with the sympathy the lawyers intended. The true meaning is that bribes and kickbacks are part of the routine relations between many politicians and their clientele. Silver’s lawyers described such transactions as “the typical, expected constituent service that our system depends on.”
Or, as McDonnell’s lawyers said in a brief, the government “openly advocates a legal rule that would make a felon of every official at every level of government.”
Perhaps that would be a good start. Many Americans are convinced that the role of money in elections is corrupting, but there’s far more evidence that officials’ constituent service is the fundamental problem, better described as bribery and extortion sandwiching conspiracy.
The unanimous Supreme Court endorsed the view of “public service” as a series of transactions between officeholders like McDonnell and clients like Williams seeking service, leaving no room for real constituents who just want to be left alone.
Watching the Guardians
The court may have a point: It might not be a good start to place every official from the president to the members of a community zoning board in permanent danger of persecution by suspicious prosecutors, who are public officials themselves and subject to the same kind of appropriate suspicion as governors and legislators. Criminalizing politics-as-usual could have unintended consequences.
But the court swallowed that argument too easily: “The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns, whether it is 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.”
Actually, the basic compact of representative government should oblige the public official to work for the general good and not for the local interest. A plant closing is a local matter for workers and employers; the homeowners should picket the utility headquarters, not the state capitol. And the promotion of a dubious product is never appropriate.
Roberts worried, “The government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame.”
But the pall could be a positive. People in public life need their consciences strengthened, and fear is a powerful incentive to exercise caution.
“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,” Roberts went on.
But maybe officials and citizens should think more often. There’s no problem with making a necessity out of virtue.
Don’t Encourage Them
Roberts worried more about overzealous prosecution of helpful public servants when the more commonplace American problems are those illuminated in Hillary Clinton’s avoidance of prosecution last week: refusal to notice and prosecute official crime; avoidance of career-damaging controversy.
Failing to criminalize McDonnell’s conduct also could have unintended consequences by encouraging the others. As Donald Trump said about his campaign contributions as a businessman, “I give to everybody. When they call, I give. And you know what, when I need something from them two years later, three years later, I call them. They are there for me.”
In this, at least, Trump may offer an expert opinion: “That’s a broken system.”
Editorial page editor Thomas G. Donlan receives e-mail at tg.donlan@barrons.com
