Corruption Law After McDonnell: Not Dead Yet

ESSAY CORRUPTION LAW AFTER MCDONNELL: NOT DEAD YET GREGORY M. GILCHRIST† I. INTRODUCTION The Supreme Court waited until the last day of its October 2015 Term to issue an opinion in McDonnell v. United States.1 One can almost imagine the chagrinned Justices not wanting to stick around for the reaction of an increasingly cynical public: money buys votes and money buys action; government of the people, by the people, and for the people is no more. Indeed, the case ends with an unusual sort of elegy: “There is no doubt that this case is distasteful; it may be worse than that. But . . . .”2 Could it be that the Court, still battered by two decisions that many continue to feel were more baldly political than most,3 was embarrassed by this latest decision?4 Probably not. The Chief Justice wrote the McDonnell decision on behalf of a unanimous Court. The indicia of raw politics from † Associate Professor, University of Toledo College of Law. A.B., Stanford University; J.D., Columbia Law School. This Essay is better than it would have been thanks to comments from Jeffrey Bellin and Evan Zoldan. Thanks also to the editors at the University of Pennsylvania Law Review, whose work was admirably thorough and fast. As always, errors are my own. 1 136 S. Ct. 2355 (2016). 2 Id. at 2375. 3 This statement refers to Bush v. Gore, 531 U.S. 98 (2000), and Citizens United v. FEC, 558 U.S. 310 (2010). 4 Dahlia Lithwick captures this sentiment nicely, writing, “[W]hen the entire public is more and more convinced—thanks in part to the court’s ruling in Citizens United—that business as usual in government consists of millionaires buying access to their elected officials, it’s not clear that the court’s best and most savvy response should be to rule unanimously that since this is merely how government is done we should all stop calling it corruption.” Dahlia Lithwick, Entry 21: Dietary Supplement Peddlers: They’re Just Like You and Me, S LATE (June 27, 2016, 7:25 PM), http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_court _breakfast_table_for_june_2016/the_bob_mcdonnell_ruling_resulted_in_some_absurd_analogies.h tml [https://perma.cc/FQ2S-9CWE]. (11) 12 University of Pennsylvania Law Review Online [Vol. 165: 11 those earlier cases are absent. No doubt, the behavior at issue in McDonnell is shameful, but the shame rests with lax state regulations and those enticed by lucre, not with the Court. Predictably, the decision has been received with some degree of panic.5 Corruption is never popular, and the ruling will make it more difficult to prosecute. But claims that federal corruption laws are dead are overstated. This Essay examines the McDonnell opinion in light of corruption law generally and identifies avenues by which corruption can, and will continue to be, prosecuted. Indeed, while McDonnell narrows the path, it also adds some clarity to the difficult nexus between free speech, free elections, representative government, and bribery. II. MCDONNELL AND THE VERY FINE LINE BETWEEN INFLUENCE AND PRESSURE A. The Background of McDonnell v. United States Robert McDonnell was elected the seventy-first Governor of Virginia on a platform of improving economic development and at a time of personal financial distress.6 The two circumstances dovetailed as the Governor found a way to mitigate his own financial distress while simultaneously advocating for the platform that put him in office. Star Scientific, Inc. (“Star”), a Virginia company founded and led by Jonnie Williams, had developed a dietary supplement based on a component of tobacco plants.7 The company desired FDA classification as a pharmaceutical because it would greatly enhance its profitability.8 However, it lacked the resources to fund the extensive studies required for such approval.9 Shortly after the election, Jonnie Williams approached the new Governor, seeking help in convincing state agencies and research universities to conduct the necessary studies.10 Williams also enlisted the help of McDonnell’s wife, who would eventually be indicted and tried alongside her husband.11 Over the next three years, Williams lavished the gubernatorial family with gifts, 5 See, e.g., Amy Davidson, The Supreme Court’s Bribery-Blessing McDonnell Decision, THE NEW YORKER (June 27, 2016), http://www.newyorker.com/news/amy-davidson/the-supreme-courts-bribery-blessingmcdonnell-decision [https://perma.cc/YE92-QDS4] (“The Court, in Citizens United and now in McDonnell, has looked upon the worst, most endemically corrupt aspects of American politics and enshrined them.”). 6 United States v. McDonnell, 792 F.3d 478, 486 (4th Cir. 2015). The Fourth Circuit decision, overruled by the Supreme Court, presents a far more detailed, and hence more disturbing, factual background. 7 Id. at 487. 8 Id. 9 Id. 10 Id. at 487-93. 11 Id. 2016] Corruption Law After McDonnell: Not Dead Yet 13 including the use of a private plane, cognac priced like tuition, haute couture, Ferrari privileges, an engraved Rolex, and much-needed loans.12 “In total, Williams gave the McDonnells over $175,000 in gifts and loans.”13 McDonnell, in turn, made efforts to help Williams and Star secure the state-sponsored study needed for FDA approval. These efforts included arranging meetings with relevant public officials, hosting and attending events at the Governor’s Mansion designed to encourage the studies, and allowing private access to the Governor’s Mansion to promote the studies.14 A jury convicted McDonnell of honest services fraud and Hobbs Act extortion.15 In doing so, the jury found that the Governor had offered his assistance “in exchange for” Williams’s gifts.16 This was bribery in common parlance. Distasteful, no doubt, and definitely a quid pro quo. And the Supreme Court vacated the convictions without altering any of these findings. The basis for the Court’s holding was that the quo did not count. Or, more precisely, it was that we don’t know whether the quo counted because the trial court defined it too broadly.17 In his influential book Bribes, John Noonan wrote that “[t]he core of the concept of a bribe is an inducement improperly influencing the performance of a public function meant to be gratuitously exercised.”18 Although this core definition remains consistent across cultures, Noonan wrote that the scope of each term varies greatly.19 The Court in McDonnell introduced a limit on what counts as a public function meant to be gratuitously exercised. B. The Meaning of “Official Act” 1. The Court’s Reasoning Most corruption statutes forbid public officials from receiving or demanding a thing of value, with corrupt intent, in exchange for being influenced in the performance of an official act.20 In McDonnell, the trial court 12 Id. 13 McDonnell v. United States, 136 S. Ct. 2355, 2364 (2016). 14 Id. at 2365-66. 15 Id. at 2366. 16 Id. 17 See id. at 2372 (criticizing and rejecting the broad understanding of what “counts as a quo”). 18 JOHN (...truncated)