Jennifer Rodgers and Jacob Watkins, respectively Executive Director and Program Coordinator for the Columbia University Center for the Advancement of Public Integrity (CAPI), contribute the following guest post:

Former Illinois Governor Rod Blagojevich was recently back in the news, but this time for something he didn’t do wrong, when the Seventh Circuit Court of Appeals vacated 5 of the 18 counts on which Blagojevich was convicted in 2011. The appellate court’s decision hinged upon the distinction between illegal corruption and legal (if distasteful) political horse-trading, an issue recently touched upon in the decision by the Court of Appeals for the Fourth Circuit to uphold former Virginia Governor Bob McDonnell’s public corruption convictions (which Matthew discussed here). The outcome of the Blagojevich appeal shows that under current U.S. law, whether or not a public official’s deal-making is illegal depends upon what exactly the official is bargaining for. Political horse-trading–exchanging one official act for another official act–is not a crime under U.S. federal law, but exchanging an official act for a private benefit is. The decision in the Blagojevich provides a useful opportunity for thinking more generally about how the law ought to draw that difficult line.

First, a quick recap: After then-Senator Obama was elected president in 2008, the job of appointing a replacement senator fell to Blagojevich, then the Governor of Illinois. To curry favor with Obama, Blagojevich planned to appoint Obama’s close friend and advisor Valerie Jarrett, in exchange for Obama’s help in securing for Blagojevich a golden ticket out of the governorship, namely a cabinet slot in the Obama administration, a leadership post at a prestigious nonprofit, or a position as the head of a new “social-welfare” organization with a $10-million-plus budget. President Obama, however, was unwilling to play ball. Rebuffed by Obama’s transition team, Blagojevich was infamously recorded saying: “They’re not willing to give me anything except appreciation. Fuck them!” (Blagojevich’s penchant for profanity is well-documented in the original complaint.) The jurors ultimately found ample evidence of Blagojevich’s intent to personally benefit from his official authority. Following two trials in 2009 and 2011, Blagojevich was convicted on 18 counts, five of which related to the open Senate seat; he was ultimately sentenced to a total of 168 months in federal prison.

So why did the Court of Appeals vacate those five counts? Essentially, the court found that the federal statutes under which the U.S. government charged Governor Blagojevich—which prohibit, respectively, (1) federal program fraud in the form of bribery or theft, (2) extortion, and (3) “theft of honest services” wire fraud—do not criminalize the exchange of one public act (such as the selection of an interim senator) for another public act (such as appointment to a cabinet position). In so holding, the court emphasized that “a proposal to trade one public act for another, a form of ‘logrolling,’ is fundamentally unlike the swap of an official act for a private payment.” In other words, when Blagojevich tried to trade a Senate seat for his own appointment to the President’s cabinet, he did not stand to reap a private benefit (as the law defines it), and thus committed no crime.

(This is not to say that Blagojevich was innocent, even of the Senate seat swap proposal. Appointment to a private sector job would be a private benefit, rather than a public act. Unfortunately for the government, the instructions to the jury grouped together Blagojevich’s legal proposal related to the cabinet seat with his two illegal solicitations for private sector jobs—jurors were told to find him guilty if they found any of those three solicitations proven beyond a reasonable doubt. As there is now no way to know which of the proposals the jury unanimously found proven by the evidence at trial, the court had to vacate all five counts of conviction related to those propositions.)

The Court of Appeals may well have been correct on its interpretation of existing U.S. law. (Indeed, we think its ruling probably was legally correct, though we don’t intend to defend that position here.) The decision, though, raises an interesting and difficult question: Why is political horse-trading not illegal? A cabinet post is a highly coveted position, virtually assuring a lucrative private sector career following government service. Blagojevich’s maneuvering was not motivated by some altruistic desire to serve the people of Illinois (or the United States) from higher office; he just wanted the better gig. Arguably, for a politician to barter away a public act in order to further that politician’s personal ambition is just as corrupt, and just as detrimental to the public good, as bargaining it away for money. (Indeed, maybe it’s even worse—the country would probably be better off with someone like Blagojevich in the private sector than running a cabinet department.) And such criminalization of what we might think of as “ordinary” political horse-trading is not unthinkable. In fact, Illinois’s northerly neighbor Wisconsin made legislative “logrolling” a felony under §13.05-13.06 of the Criminal Code. Unlike in other states, Wisconsin politicians can’t trade an official vote or appointment for another. (Of course, though such swaps often often take place in state politics, they can be fairly hard to prove.)

On the other hand, many view political horse-trading as fair play, and the only way political business gets done. Indeed, former congressman Barney Frank has argued that vote-trading and other forms of logrolling are an integral part of the deliberative process of governing. He wrote: “Because parliamentary bodies have to arrive at binding decisions on the full range of human activity in an atmosphere lacking the structure provided by either money or hierarchy, members have to find ways to bring some order out of what could be chaos.” And politicians often benefit from their public duties, even when also advancing the greater good. Even in Blagojevich’s case, Illinoisans might have benefited from having their former governor looking out for their interests in Obama’s cabinet—even if the interests he served foremost were his own.

Whether or how to regulate—or criminalize—political horse-trading is one of the most challenging problems in defining, as a matter of law, the sometimes blurry line between corruption and uncorrupt (though perhaps shady) political maneuvering. The question the appeals court confronted, of course, was not whether such horse-trading should be criminalized, but rather whether the U.S. Congress had in fact criminalized it. Again, our instinct is that the appeals court was likely correct in giving a negative answer to that latter question. But the larger policy question—whether other jurisdictions should follow Wisconsin’s example, is still before us.